UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


TESTAMENTARY    FORMS 

AND 

NOTES  ON  WILLS 


TESTAMENTARY  FORMS 


AND 


NOTES  ON  WILLS 


BY 


GEORGE   F.  TUCKER 
/•• 

AUTHOR   OF    "  THE   MONROE   DOCTRINE  " 
AND   JOINT   AUTHOR    OF    "  THE    FEDERAL    INCOME    TAX 
EXPLAINED,"    AND     "NOTES     ON    THE 
UNITED   STATES   STATUTES" 


BOSTON 

LITTLE,  BROWN,  AND  COMPANY 
1912 


T/*l     % 


ma. 


Copyright,  1912, 
BY  LITTLE,  BROWN,  AND  COMPANY. 

All  rights  reserved 


THE    UNIVERSITY    PRESS,    CAMBRIDGE,    U.S.A. 


PREFACE 

A  previous  work  on  wills  by  the  same  author, 
designed  for  use  in  Massachusetts,  has  been  of 
service  to  the  profession  in  that  State.  The  present 
volume  is  prepared  with  a  view  to  its  use  in  every 
American  jurisdiction.  The  greater  part  of  the 
work  is  devoted  to  forms,  and  the  suggestions  not 
only  embrace  the  recognized  principles  of  law  but 
numerous  practical  points  which  it  is  believed  are 
to  be  found  hi  no  other  work. 

Briefly  stated,  the  purpose  is  to  provide  the  at- 
torney with  a  book  which,  after  receiving  instruc- 
tions from  the  testator,  he  may  consult  in  order 
to  learn  if  these  instructions  are  permissible  and 
proper,  or  should  be  abridged  or  enlarged,  and  in 
which  he  may  find  the  form  he  desires. 

G.  F.  T. 

BOSTON,  April  1,  1912. 


TABLE   OF  CONTENTS 

CHAPTER  I 
REASONS  FOB  MAKING  A  WILL 

PAGE 

I.  A  WILL  AS  A  MATTER  OF  RECORD 4,5 

II.  TROUBLE  OVER  DOWER    -.'.-.-.    .  • 5 

III.  DEFEATING  WAITING  HEIRS 5,  6 

IV.  THE  MARSHALLING  OF  ASSETS  TO   PAY   DEBTS   AND 

LEGACIES 6 

V.  TRUSTS 6,7 

VI.  CONCURRENT  DEATHS 7 

VII.  DIRECTIONS  AS  TO  DIVISION  OF  PROPERTY     ....     7-9 

VIII.  EXECUTORS,  SURETIES  ON  BOND,  AND  POWERS  OF  SALE        9 

IX.  SPECIAL  INSTRUCTIONS 10, 11 

CHAPTER  II 

WHERE  A  WILL  MAY  BE  MADE  AND  ITS  EFFECT  UPON  PROPERTY 
IN  OTHER  JURISDICTIONS 

I.  WHERE  A  WILL  MAY  BE  MADE 12-14 

II.  EFFECT  OF  A  WILL  UPON  PROPERTY  IN  OTHER  JU- 
RISDICTIONS      14-17 

CHAPTER   III 
WHO  MAY  MAKE  A  WILL 48-58 

CHAPTER  IV 

WHAT  PROPERTY  MAY  OR  MAY  NOT  BE  BEQUEATHED  OR 
DEVISED 

I.  AFTER-ACQUIRED  PROPERTY      59-60 

II.  CONTINGENT   REMAINDERS,  EXECUTORY  DEVISES, 

ETC.,  VESTED  INTERESTS 60,  61 

III.  DEVISING  OR  BEQUEATHING  PROPERTY  WHICH  THE 

TESTATOR  DOES  NOT  OWN 61-63 

IV.  TRUST  DEEDS  AND  DECLARATIONS  OF  TRUST  .    .     63-66 
V.  GIFTS  MORTIS  CAUSA 66 

.  vii 


Vlll  CONTENTS 

PAGE 

VI.  GOOD-WILL 66-68 

VII.  POWERS  OP  APPOINTMENT 68-76 

VIII.  RIGHTS  AS  FELLOW  OR  PATRON 76 

IX.  RENEWALS  AND  EXTENSIONS  OF  COPYRIGHTS  .    .  77 

X.  POLICIES  OP  INSURANCE 77 

XI.  PERSONAL  CHATTELS  IN  THE  NATURE  OP  HEIR- 
LOOMS      78-80 

XII.  SURVIVAL  OP  ACTIONS 80,81 

XIII.  TESTATOR'S    BODY,    MONUMENTS,    TOMBSTONES, 

BURIAL  LOTS  AND  CEMETERY  CORPORATIONS     .     81-88 

XIV.  RESIDENCE  OF  THE  TESTATOR  AS  A  HOME  FOR  THE 

FAMILY      88-91 

XV.  REAL  ESTATE  SUBJECT  TO  MORTGAGE  OR  OTHER 

INCUMBRANCE 91-96 

XVI.  PERSONAL  ESTATE  SUBJECT  TO  INCUMBRANCES    .     96-99 
XVII.  JOINT  REAL  AND  PERSONAL  PROPERTY      ....  99-101 
XVIII.  CARRYING  ON  AND  ADJUSTING  TESTATOR'S  PART- 
NERSHIP AND  OTHER  BUSINESS 101-112 

,  XIX.  AUTHORITY  GIVEN  EXECUTORS  TO  SIGN,  INDORSE, 

ETC.,  COMMERCIAL  PAPER 112,113 

XX.  PEWS 113, 114 

XXI.  OPERA  Box 114 

XXII.  DUMB  ANIMALS 114, 115 

XXIII.  MANUSCRIPTS,  PAPERS,  LETTERS,  ETC 115, 116 

XXIV.  VARIOUS  BEQUESTS,  DEVISES,  AND  PROVISIONS    116-124 


CHAPTER  V 

WHO  MAY  BE  A  DEVISEE  OR  LEGATEE 125-127 

CHAPTER  VI 

FORM  OP  WILLS 128-138 

CHAPTER  VII 

DIFFERENT  KINDS  OF  WILLS 139-146 

CHAPTER  VIII 

DESCRIPTION  OF  REAL  ESTATE  —  Fee  SIMPLE  —  FEE-TAIL  —  JOINT 
TENANCY,  TENANCY  BY  THE  ENTIRETY,  AND  TENANCY  IN  COMMON 
—  ESTATE  FOR  LIFE  OR  FOR  YEARS. 

DESCRIPTION  OF  REAL  ESTATE 147, 148 

FEE  SIMPLE 148-154 

FEE-TAIL 154, 155 


CONTENTS  IX 

PAGE 

JOINT  TENANCY,  TENANCY  BY  THE  ENTIRETY,  AND  TEN- 
ANCY IN  COMMON 156-158 

ESTATE  FOR  LIFE  OR  FOR  YEARS 159-162 

CHAPTER  IX 

CONDITIONS    PRECEDENT   AND   SUBSEQUENT  —  VESTED   AND  CON- 
TINGENT REMAINDERS  —  EXECUTORY  DEVISES  AND  PERPETUITIES 

CONDITIONS  PRECEDENT  AND  SUBSEQUENT 163-188 

1.  Payment  of  Legacies 166-171 

2.  Devises  Charged  with  the  Payment  of  Legacies  or 

the  Expenses  of  One's  Education      171 

3.  Legacy  to  an  Executor  or  a  Trustee 172-174 

4.  Restraint  of  Marriage 174-177 

5.  Restraint  of  Alienation 177, 178 

6.  Conditions  not  to  Dispute  Wills 178-184 

7.  Conditions  as  to  Residence 184, 185 

8.  Gifts  to  Servants,  Employees,  etc 185-188 

9.  Various  Conditions 188 

VESTED  AND  CONTINGENT  REMAINDERS 189-192 

EXECUTORY  DEVISES  AND  PERPETUITIES 193-208 

CHAPTER  X 

DESCRIPTION  OF  LEGATEES  AND  LEGACIES 

Description  of  Legatees 209-228 

Description  of  Legacies 228-234 

CHAPTER  XI 

SPECIFIC  LEGACIES,  ADEMPTION,  EXONERATION,  ABATEMENT, 
AND  CONTRIBUTION 

Specific  Legacies 235-239 

Ademption 239-243 

Abatement  and  Contribution 243-250 

Estate  Given  in  Shares 250-252 

CHAPTER  XII 
LEGACY  TO  DEBTOR  OR  CREDITOR  OF  THE  TESTATOR 

1.  Legacy  to  a  Debtor 253-267 

2.  Legacy  to  a  Creditor 267, 268 

CHAPTER  XIII 

PAYMENT  OF  AND  INTEREST  UPON  LEGACIES    .  269-292 


X  CONTENTS 

CHAPTER  XIV 

PAGE 

LAPSED  DEVISES  —  RESIDUARY  CLAUSE  —  REVOCATION  .  293-307 

CHAPTER  XV 

EXECUTOR 

I.  WHO  MAY  BE  EXECUTOR 308-321 

II.  SPECIAL  DIRECTIONS     .   ,   •. 321-359 

1.  The  Bond  and  Liability  thereon 321-325 

2.  Charges  of  Administration,  Compensation    .    .    .  325-327 

3.  Directions  that  a  Majority  of  Executors  May  Act  328-329 

4.  Just  Debts  and  Funeral  Expenses 329-333 

5.  Powers  to  Sell,  Mortgage,  Lease,  etc 333-344 

6.  Executors  and  Trustees  Purchasing  Trust  Property  344,  345 

7.  Directions  as  to  Insurance 345-347 

8.  Taxation  of  Estate  of  Deceased  Person 347 

9.  Compromise  and  Arbitration 348-350 

10.  Employment  of  Attorneys,  Agents,  Clerks,  etc., 

Consultation  with  Others.     Various  Requests  350-353 

11.  Suggestions  as  to  Keeping  Records 353-355 

12.  Delegation  of  Powers  and  Duties  by  Power  of 

Attorney 355,  356 

13.  Instructions  as  to  Voting  Shares 356-358 

14.  No  Inventory  or  Accounting 358,  359 

15.  Auditing  Accounts  and  Examining  Securities  .    .  359 

CHAPTER  XVI 

TRUST  AND  TRUSTEE  —  GUARDIAN 

TRUST  AND  TRUSTEE 

I.  LANGUAGE  AND  SUBJECT  MATTER 360-365 

II.  THE  TRUSTEE 

1.  Who  May  Be  a  Trustee 365-370 

2.  The  Bond  and  Liability  thereon 370 

3.  The  Compensation  of  Trustees      371-373 

4.  The  Number  and  Appointment  of  Trustees  to  Fill 

Vacancies 373-381 

5.  Power  to  Sell,  Mortgage,  Lease,  Invest,  and  Rein- 

vest, etc 381-389 

6.  Auditing  Accounts  and  Examining  Securities  .    .  389-392 
III.  THE  CESTUI  QUE  TRUST 

1.  Who  May  Be  a  Cestui  Que  Trust 393 

2.  Payment  of  Income.     Alienation,  Accumulation .    .  393-401 

3.  Annuities  .  401-405 


CONTEXTS  XI 

PAGE 

4.  Application  of  Income  for  Education,  Maintenance, 

and  Support 406-409 

5.  Questions  between  Tenant  for  Life  and  Remainder- 

man         410-431 

6.  Disposition  of  Income  and  of  the  Fund  when  the 

Cestui  Que  Trust  Lives  in  a  Jurisdiction  Other 

than  that  of  the  Testator 431,  432 

IV.  TERMINATION  OF  THE  TRUST 

1.  The  Rule  against  Perpetuities 432 

2.  Powers  of  Appointment 433, 434 

3.  Instalments 435 

4.  One    Fund    Chargeable    with    Annuities,    or    as 

Many  Funds  as  there  Are  Cestuis  Que  Trust   .    .     435-436 

5.  Whether  "Survivor"  is  to  be  Changed  "Other." 

Accruing  Shares 436^439 

6.  Termination  before  all  the  Purposes  of  the  Trust  -v4 

Have  Been  Accomplished 439,  440 

7.  General  Points  as  to  Termination 440-444 

8.  Resulting  Trusts 444,  445 

9.  Heirs-at-Law,  Next  of  Kin 445 

GUARDIAN      445-450 

CHAPTER  XVII 

PUBLIC  CHARITIES 451-465 

CHAPTER  XVIII 
EXECUTION  AND  ATTESTATION 466-480 

CHAPTER  XIX 

SUGGESTIONS  FOR  PREPARING  WILLS  .  481-495 


APPENDIX  I 
FORMS  OF  WILLS 497-593 

APPENDIX   II 

PUBLIC  CHARITIES 
ACTS  OF  INCORPORATION 595-625 

INDEX  627 


TABLE   OF  CASES  CiTED 

A 

PAQB 

Abbott  v.  Middleton,  7  H.  L.  Gas.  68 151, 234 

Ackers  v.  Phipps,  3  Cl.  &  Fin.  655 189 

Addams  v.  Ferick,  26  Beav.  384 97 

Albee  v.  Carpenter,  12  Gush.  382 155 

Aldrich  v.  Aldrich,  172  Mass.  101 361 

Allen  v.  Dean,  148  Mass.  594      336 

v.  Edwards,  136  Mass.  138 254 

t;.  Maddock,  11  Moo.  P.  C.  C.  427 145 

v.  Merwin,  121  Mass.  378 267 

v.  Stevens,  161  N.  Y.  122 465 

Amherst  College  v.  Ritch,  151  N.  Y.  282      130 

v.  Smith,  134  Mass.  543      153 

Amory  v.  Meredith,  7  Allen,  397 69 

Appeal  of  Stoughton,  88  Pa.  St.  198 203 

Trustees,  97>Pa.  St.  187      294 

Arcularius  v.  Sweet,  25  Barb.  403 129 

Armstrong  v.  Armstrong,  14  B.  Monr.  333 201 

t;.  Bui-net,  20  Beav.  424 97 

Arnold  v.  Emus,  2  Ir,  Ch.  Rep.  601 416 

v.  Reed,  162  Mass.  438 4 

Attorney  General  v.  Newberry  Library,  150  111.  229 465 

v.  Parkin,  Ambl.  566 235 

v.  Proprietors  of  Federal  Street  Meeting-House,  3  Gray,  1  365 

v.  Shore,  1  M.  &  Cr.  394;   12  Sim.  426 455 

v.  Winchelsea,  3  Bro.  Ch.  373       455 

Austin  v.  Oakes,  117  N.  Y.  577 68 


B 

Bacon  v.  Gassett,  13  Allen,  334 257 

v.  Pomeroy,  104  Mass.  577 103, 329 

Baker  v.  Baker,  8  Gray,  101 225 

v.  Clarke,  110  Mass.  88 127 

v.  Whiting,  3  Sumner,  475      365 

Baker's  Appeal,  107  Pa.  St.  381 130 

Balcom  v.  Haynes,  14  Allen,  204 218 

Baldwin  v.  Rogers,  3  DeG.  M.  &  G.  649 296 

Ballard  v.  Ballard,  18  Pick.  41 190,  294 

xiii 


XIV  TABLE    OF   CASES   CITED 

PAGE 

Bank  of  Troy  v.  Stanton,  116  Mass.  435 62 

Barber  v.  Barber,  3  Myl.  &  Cr.  688 301 

Bartlett  v.  Nye,  4  Met.  378 454 

Batchelder,  Petr.,  147  Mass.  465 7,  299 

Bates  v.  Bates,  134  Mass.  110 206 

-  v.  Dewson,  128  Mass.  334 226 

Bayley  v.  Bailey,  5  Gush.  245 13 

Beard  v.  Westcott,  5  B.  &  Aid.  809 201 

Beavan  v.  Beavan,  24  Ch.  D.  649,  n 416 

Bedford  v.  Bedford,  99  Ky.  273 127 

Bigelow  v.  Gfflott,  123  Mass.  102 300,  304 

Bird  v.  Luckie,  8  Hare,  301 191,  224 

Blake  v.  Shaw,  Johns.  Ch.  732 67 

Blanchard  v.  Blanchard,  1  Allen,  223 189 

Blatchford  v.  Newberry,  99  111.  11 465 

Boardman  v.  Boardman,  4  Allen,  179 235 

Booth  v.  Coulton,  L.  R.  5  Ch.  684 246 

Borden  v.  Jenks,  140  Mass.  562      250 

Bostick  v.  Blades,  59  Md.  231 175 

Bothamley  v.  Sherson,  L.  R.  20  Eq.  304 96 

Bowditch  v.  Andrew,  8  AUen,  399 226,  439 

v.  Coffin,  Supr.  Jud.  Court,  Suffolk,  No.  4772,  Eq.  1895  .     417 

-  v.  Soltyk,  99  Mass.  136 287 

Bowker  v.  Pierce,  130  Mass.  262 373 

Boynton  v.  Dyer,  18  Pick.  1 447 

Bradlee  v.  Andrews,  137  Mass.  50      246 

Brattle  Square  Church  v.  Grant,  3  Gray,  142 166, 194, 

196,  208,  300 

Bridgnorth  v.  Collins,  15  Sim.  538 215 

Briggs  v.  Briggs,  69  Iowa,  617 59 

v.  Hosford,  22  Pick.  288 235 

v.  Shaw,  9  AUen,  516 151 

Broadway  Bank  v.  Adams,  133  Mass.  170 398 

Brooks  v.  Jones,  11  Met.  191 364 

v.  Lynde,  7  Allen,  64 273,277 

v.  Rice,  131  Mass.  408 402 

Brown  v.  Brown,  42  Minn.  270 61 

v.  Cushman,  173  Mass.  368 81 

v.  Gellatly,  2  Ch.  751 416 

Browne  v.  Cogswell,  5  Allen,  556       299 

Brownrigg  v.  Pike,  7  P.  D.  61 3 

Bryson  v.  Holbrook,  159  Mass.  280 222 

Buckley  v.  Buckley,  157  Mass.  536 311 

Bullock  v.  Downes,  9  H.  L.  C.  1 224 

Bunn  v.  Winthrop,  1  Johns.  Ch.  329 3 

Burrill  v.  Boardman,  43  N.  Y.  254 465 

Burwell  v.  Mandeville's  Executor,  2  How.  560 103 

Butterfield  v.  Hamant,  105  Mass.  338 493 


TABLE    OF    CASES    CITED  XV 


PAGE 

Caldecott  v.  Caldecott,  1  Y.  &  C.  C.  C.  312 416 

Calvert  v.  Sebbon,  4  Beav.  222 172 

Campbell  v.  Rawdon,  18  N.  Y.  412 295 

Casper  v.  Walker,  33  N.  J.  Eq.  35 185 

Chapin  v.  Cooke,  73  Conn.  72 174 

Chapman  v.  Chick,  81  Me:  109 229 

Chase  v.  Chase,  132  Mass.  473 161 

v.  Chase,  2  Allen,  101      ..." 370,  406 

Cheetham  v.  Ward,  1  Bos.  &  Pul.  630 312 

Childs  v.  Russell,  11  Met.  16 191 

Christy  v.  Commissioners,  41  Ohio  St.  711 127 

Clapp  v.  Ingraham,  126  Mass.  200 69 

Clarke  v.  Burgoyne,  1  Dick.  353 264 

v.  Cordis,  4  Allen,  466 221 

Clarkson  v.  Clarkson,  18  Barb.  646 422 

Cleveland  v.  Hallett,  6  Gush.  403 364 

Cockerell  v.  Barber,  16  Ves.  461 284 

Cole  v.  Turner,  4  Russ.  376 153 

Collyer  v.  Collyer,  110  N.  Y.  481 304 

Colwell  v.  AJger,  5  Gray,  67 322 

Compton  v.  Bloxham,  2  Coll  (Chan.)  201 129 

Converse  v.  Starr,  23  Ohio  St.  491 12 

Cook  v.  Cook,  2  Vern.  545 190 

v.  Smith,  101  Mass.  341      439 

Cooper  v.  Bocket,  4  Moo.  P.  C.  C.  419 467 

Getting  v.  De  Sartiges,  17  R.  I.  668 68 

Courtenay  v.  Williams,  3  Hare,  539 258 

Cowell  v.  Springs  Co.,  100  U.  S.  55    . 163 

Cox  v.  Curwen,  118  Mass.  198 227 

Coye  v.  Leach,  8  Met.  371 7 

Crawford  v.  McCarthy,  159  N.  Y;  514      239 

Crerar  v.  Williams,  145  111.  625 465 

Crippen  v.  Dexter,  13  Gray,  330 13 

Croft,  Petr.,  162  Mass.  22 259,  493 

Grossman  v.  Grossman,  95  N.  Y.  145 303 

Cummings  v.  Bramhall,  120  Mass.  552 258 

Cusack  v.  Rood,  24  W.  R.  391 191 

Gushing  v.  Spalding,  164  Mass.  287 177 


D 

Daggett  v.  Slack,  8  Met.  450  .    .    . 219 

Damon  v.  Damon,  8  Allen,  192 141 

Dancer  v.  Crabb,  3  P.  &  D.  98 305 

Davenport  v.  Coltman,  9  M.  &  W.  481 148 


XVI  TABLE    OF   CASES   CITED 

PAOB 

Davis  v.  Taul,  6  Dana,  51 294 

De  Beauvoir  v.  De  Beauvoir,  3  H.  L.  Cas.  524 221 

Denne  v.  Wood,  4  L.  J.  (O.  S.)  57 472 

Dennison  v.  Goehring,  7  Barr.  175 3 

De  Nottebeck  v.  Astor,  13  N.  Y.  98 213 

Despard  v.  Churchill,  53  N.  Y.  192 310 

Dexter  v.  Harvard  CoUege,  176  Mass.  192 229 

Dickinson  t;.  Purvis,  8  S.  &  R.  71 294 

Dickson  v.  United  States,  125  Mass.  311 127 

Dixon  v.  Homer,  12  Gush.  41      373 

Doe  v.  Timins,  1  B.  &  Aid.  530 118 

v.  Wynne,  23  Miss.  251 59 

Dole  v  Johnson,  3  Allen,  364 299 

v.  Keyes,  143  Mass.  237 190 

Doody  v.  Higgins,  9  Hare,  App.  xxxii 220 

D'Ooge  v.  Leeds,  176  Mass.  558 415 

Dorr  v.  Levering,  147  Mass.  530 190 

Drew  v.  Wakefield,  54  Me.  291 165 

Drummond  v.  Crane,  159  Mass.  577 80 

Duffield  v.  Duffield,  3  Bligh,  N.  S.  260 169 

Dunbar  v.  Soule,  129  Mass.  284 368 


E 

Eager  v.  Whitney,  163  Mass.  463       192 

Easterbrooks  v.  Tillinghast,  5  Gray,  17 206,  444 

Edmonds  v.  Crenshaw,  14  Pet.  166 324 

Edward's  Estate,  190  Pa.  St.  177 203 

Ellis  v.  Page,  7  Gush.  161 118,  249 

Ellison  v.  Ellison,  6  Ves.  656 2 

Emery  v.  Wason,  107  Mass.  507 97 

Evans  v.  Crosbie,  15  Sim.  600 148 

Evers  v.  Challis,  7  H.  L.  Cas.  531 201 

Ex  parte  Garland,  10  Ves.  Jr.  109 103 


F 

Fabens  v.  Fabens,  141  Mass.  395 221 

Falk  v.  Turner,  101  Mass.  494 3 

Faloon  v.  Flannery,  74  Minn.  38 68 

Fargo  v.  Miller,  150  Mass.  225 191 

Farnum  v.  Bascom,  122  Mass.  282 236, 249 

Fawkes  v.  Gray,  18  Ves.  131 ' 161 

Fay  v.  Sylvester,  2  Gray,  171     190 

Fearing  v.  Swift,  97  Mass.  413 159 

Fellows  v.  Miner,  119  Mass.  541 17,454 


TABLE    OF   CASES   CITED  XV11 

PAGE 

Ferrer  v.  Pyne,  81  N.  Y.  281 219 

Person  v.  Dodge,  23  Pick.  287 234 

Field  v.  Hitchcock,  17  Pick.  182 160 

Finlay  v.  King,  3  Pet.  346 164 

Fisher  v.  Fields,  10  Johns.  495 364 

Fiske  v.  Cobb,  6  Gray,  144      161 

Flummerfelt  v.  Flummerfelt,  51  N.  J.  Eq.  432 393 

Fontain  v.  Ravenel,  17  How.  369 454 

Foote,  Apt.,  22  Pick.  299 235 

Forster  v.  Sierra,  4  Ves.  766 221 

Forward  v.  Forward,  6  Allen,  494 313,  325 

Fosdick  v.  Fosdick,  6  Allen,  41 203 

Fox  v.  Senter,  83  Me.  295 77 

Francis  v.  Clemow,  Kay,  435      153 

Freakley  v.  Fox,  9  Barn.  &  Cres.  130    .    . 312 

Fuller  v.  Fuller,  Cr.  Eliz.  422 190 

v.  Wilbur,  170  Mass.  506 322 


G 

Gardner  v.  Gardner,  3  Mason,  218 153 

—  v.  Webber,  17  Pick.  407      .- 278 

Garman  ».  Glass,  197  Pa.  St.  101 69 

Gibbs  v.  Marsh,  2  Met.  243 336 

Gibson  v.  Bott,  7  Ves.  89 416 

v.  Cooke,  1  Met.  75 425 

v.  Montfort,  1  Ves.  Sen.  485 364 

Girard  v.  Philadelphia,  7  Wall.  1 127 

Gittings  v.  McDermott,  2  Myl.  K.  69 294 

Goldtree  v.  Thompson,  79  Cal.  613 203 

Goods  of  Bailey,  L.  R.  1.  P.  &  D.  628 145 

De  Bode,  5  N.  of  C.  189 305 

Eeles,  2  Sw.  &  T.  600      305 

Francis  Owston,  2  Sw.  &  Tr.  461      476 

Hereford,  3  P.  &  D.  211 305 

Howard,  L.  R.  1  P.  &  D.  636 3 

Jordan,  L.  R.  1  P.  &  D.  555      3 

Lancaster,  1  Sw.  &  Tr.  464 3 

McCabe,  3  P.  &  D.  94 305 

Smith,  L.  R.  1  Prob.  &  D.  717      141 

Terrible,  1  Sw.  &  Tr.  140 145 

Gorham  v.  Dodge,  122  111.  528 61 

Gould  v.  Lamb,  11  Met.  84 364 

v.  Mansfield,  103  Mass.  408 140 

Graves  v.  Hicks,  11  Sim.  536 246 

Gray  v.  Siggers,  15  Ch.  D.  74 422 

Green  v.  Hewitt,  97  111.  113 175 


XVili  TABLE    OF   CASES   CITED 

PAGE 

Greenwood  v.  Greenwood,  5  Ch.  D.  954 234 

Greville  v.  Browne,  7  H.  L.  Gas.  689 153 

Griggs  v.  Veghte,  47  N.  J.  Eq.  179 273 

Gruver  v.  Wood,  174  Mass.  540 249 

Gundry  v.  Pinniger,  1  D.  M.  &  G.  502 224 


H 

Hadley  v.  Hadley  Manfg.  Co.,  4  Gray,  140 165 

Haley  v.  Boston,  108  Mass.  576     215 

Hall  v.  Hall,  123  Mass.  120 208 

v.  Hancock,  15  Pick.  255 211 

v.  Priest,  6  Gray,  18 189 

Hamlin  v.  Stevens,  177  N.  Y.  39 .  143 

Hammond  v.  Putnam,  110  Mass.  232 335 

Hapgood  v.  Houghton,  10  Pick.  154 330 

Haraden  v.  Larrabee,  113  Mass.  430 222 

Hardy  v.  Smith,  136  Mass.  328 228 

Harlow  v.  Cowdrey,  109  Mass.  183 201 

Harris  v.  Watkins,  Kay.  438 153 

Harrison  v.  Pepper,  166  Mass.  288 410 

Hartnett  v.  Wandell,  60  N.  Y.  346 310 

Hartop  v.  Whitmore,  1  P.  Wms.  681 264 

Hartwell  v.  Rice,  1  Gray,  587 265 

Harvey  v.  Richards,  1  Mason,  381 14, 15 

Hascoll  v.  King,  162  N.  Y.  134 ' .    .    .    .  203 

Hatch  v.  Bassett,  52  N.  Y.  359 161 

Haxall  v.  Shippen,  10  Leigh,  536 410 

Hayden,  v.  Barrett,  172  Mass.  472 217 

v.  Stoughton,  5  Pick.  528 300 

Hayward  v.  Davidson,  41  Ind.  212 127 

-  v.  Loper,  147  111.  41 264 

Healey  v.  Toppan,  45  N.  H.  243 422 

Hess  v.  Singler,  114  Mass.  56 361 

Hewes  v.  Dehon,  3  Gray,  205 91 

Hicks  v.  Chapman,  10  Allen,  463 448 

Higginson  v.  Turner,  171  Mass.  586 127 

Hill  v.  Bacon,  106  Mass.  578 59,  190 

—  v.  Tucker,  13  How.  458 18 

Hillen  v.  Iselin,  144  N.  Y.  365 225 

Hills  v.  Simonds,  125  Mass.  536 202 

Hitchcock  v.  Shaw,  160  Mass.  140 472 

Hogan  v.  Curtin,  88  N.  Y.  162 175 

Holland  v.  Cruft,  3  Gray,  162 335 

Holloway  v.  Holloway,  5  Ves.  399 224 

Holm  v.  Low,  4  Met.  190 192 

Homer  v.  Shelton,  2  Met.  194 161 


TABLE    OF   CASES   CITED  XIX 

PAGE 

Hosea  v.  Jacobs,  98  Mass.  65 200 

Hovey  v.  Dary,  154  Mass.  7 335 

Howe  v.  Earl  of  Dartmouth,  7  Ves.  137 415 

—  v.  Morse,  174  Mass.  491 195 

-  v.  Watson,  179  Mass.  30 143 

Rowland  v.  Slade,  155  Mass.  415 296 

Hubbard  v.  Hubbard,  6  Met.  50 249 

Hubbell  v.  Hubbell,  9  Pick.  561      249 

Humes  v.  Wood,  8  Pick.  478 236 

Hunt  v.  Hunt,  11  Met.  88 494 

Hunter  v.  Bryson,  5  Gill  &  J.  483 18 

Hyde  v.  Baldwin,  17  Pick.  303 61 

v.  Billiard,  Supr.  Jud.  Court,  Suffolk,  No.  762,  Eq.,  1883  417 


I 

Inglis  v.  Sailors'  Snug  Harbor,  3  Pet.  (U.  S.)  99 465 

7n  re  Best's  Trusts,  L.  R.  18  Eq.  686 227 

Dugdale,  38  Ch.  D.  176      195 

Martin,  25  R.  I.  1 236 

Morgan,  [1893]  3  Ch.  322 299 

Parker,  17  Ch.  D.  262 216 

Porter's  Trust,  4  Kay  &  Johns.  188 294 

Powell's  Trusts,  39  L.  J.  Ch.  n.  s.  188 208 

Kosher,  26  Ch.  D.  801 195 

Ipswich  Co.  v.  Story,  5  Met.  310 312 


J 

Jackson  v.  Chase,  98  Mass.  286 285 

-  v.  Phillips,  14  Allen,  539 202,  204,  452,  454 

Jaques  v.  Swasey,  153  Mass.  596 265 

Jenkins  v.  Horwitz,  92  Md.  34 185 

v.  Merritt,  17  Fla.  304 ' .    .    .    .     185 

Johnson  v.  Ames,  11  Pick.  172 62 

v.  Goss,  128  Mass.  433 96,  234 

v.  Home  for  Aged  Men,  152  Mass.  89 248 

Jones  v.  Colbeck,  8  Ves.  38 191 

v.  Richardson,  5  Met.  247 265,  322 

v.  Walker,  103  U.  S.  444 104 


K 

Kane  v.  Bloodgood,  7  Johns.  Ch.  90 365 

Keay  v.  Boulton,  25  Ch.  D.  212 220 

Kekewich  v.  Manning,  1  De  Gex,  Macn.  &  Gord.  176    ....  2 


XX  TABLE    OF   CASES   CITED 

PAGE 

Kenaday  v.  Sinnott,  179  U.  S.  606 238 

Kent  v.  Dunham,  106  Mass.  586 273 

Kernochan  v.  Murray,  111  N.  Y.  306 80,  81 

Kilpatrick  v.  Barren,  125  N.  Y.  751 213 

Kimball  v.  Ellison,  128  Mass.  41 59 

-  v.  Story,  108  Mass.  382 294 

Kinmonth  v.  Brigham,  5  Allen,  270 415,  416 

Kirby  v.  Potter,  4  Ves.  748 235 

Kirkland  v.  Narramore,  105  Mass.  31 172 

Knight  v.  Mahoney,  152  Mass.  523 175 

Kunkel  v.  Macgill,  56  Md.  120 235 


L 

Langdon  v.  Astor,  16  N.  Y.  9 257,  266 

Laible  v.  Ferry,  32  N.  J.  Eq.  791 102 

Laing  v.  Barbour,  119  Mass.  523 229 

Lee  v.  Lee,  1  Dr.  &  Sm.  85      224 

Lees  v.  Massey,  3  De  Gex,  F.  &  J.  113 191 

Lerow  v.  Wilmarth,  9  Allen,  382 410 

Little  v.  Little,  161  Mass.  188 412 

Loder'v.  Hatfield,  71  N.  Y.  92 153 

Lombard  v.  Boyden,  5  Allen,  249 295,  301 

Longhead  v.  Phelps,  2  W.  Bl.  704 201 

Loring  v.  Blake,  98  Mass.  253 200,  207 

v.  Marsh,  2  Clifford,  469;  s.  c.  6  Wallace,  337 454 

Lovell  v.  Charlestown,  66  N.  H.  584 127 

Levering  v.  Levering,  129  Mass.  97 208 

v.  Worthington,  106  Mass.  86 208 

Lovett  v.  Gillender,  35  N.  Y.  617 177 

Lowell  et  al.,  Apts.,  22  Pick.  215 455 

Lucas  v.  Williams,  3  Giff.  150 102 


M 

Malcolm  v.  Martin,  3  B.  C.  C.  50 284 

Malone  v.  Hobbs,  1  Rob.  (Va.)  346 303 

Manbridge  v.  Plummer,  2  Myl.  &  K.  93 118 

Manners  v.  Pearson  &  Son  (1898),  1  Ch.  581 284 

Manuel  v.  Manuel,  13  Ohio  St.  559 12 

Marsh  v.  Hague,  1  Edw.  Ch.  174 273 

Martin  v.  Martin,  131  Mass.  547 141 

Mason  v.  Mason,  1  Meriv.  308 7 

Mathis  v.  Mathis,  18  N.  J.  Law,  59 236 

Matter  of  Coburn,  9  Misc.  (N.  Y.)  437 307 

Kimberly,  150  N.  Y.  90 212 


TABLE    OF   CASES   CITED  XXI 

PAGE 

Matter  of  McCormick,  40  N.  Y.  App.  Div.  73;  163  N.  Y.  551  406 

Miner,  146  N.  Y.  121      300 

Phelps,  22  St.  Rep.  (N.  Y.)  896 470 

Russell,  168  N.  Y.  169 211 

Smith,  46  Misc.  (N.  Y.)  210 77 

Stewart,  88  N.  Y.  App.  Div.  23 89 

Van  Slooten  v.  Dodge,  145  N.  Y.  327 102 

Wells,  113  N.  Y.  396 293 

Maybank  v.  Brooks,  1  Bro.  Ch.  84 294 

McArthur  v.  Scott,  113  U.  S.  340 189 

McDonogh  v.  Murdoch,  15  How.  367 127 

Merriam  v.  Simonds,  121  Mass.  198      295 

Merrill  ».  Emery,  10  Pick.  507 .  ,. 160 

-  v.  Hayden,  86  Me.  133 294 

Merritt  v.  Richardson,  14  Allen,  239 291 

Metcalf  v.  Framingham  Parish,  128  Mass.  370 493 

Meyer  v.  Simonsen,  5  De  G.  &  Sm.  723 416 

Miller*;.  Miller,  79  Hun.  197 '...'.  \    ...  228 

Minot  v.  Amory,  2  Gush.  377 370 

v.  Paine,  99  Mass.  101 412 

v.  Thompson,  106  Mass.  583 415, 417 

Minter  v.  Wraith,  13  Sim.  52 201 

Moore  v.  Hegeman,  72  N.  Y.  376 494 

Morse  v.  Mason,  11  Allen,  36 214 

v.  Natick,  176  Mass.  510 206 

Morton  ».  Perry,  1  Met.  446 234 

Moultrie  v.  Hunt,  23  N.  Y.  394      13 

Mounsey  v.  Blamire,  4  Russ.  384 221 

Murphy  v.  Walker,  131  Mass.  341 103 


N 

Newcomb  v.  Webster,  113  N.  Y.  191 144 

v.  Williams,  9  Met.  525 308 

Newhall  v.  Wheeler,  7  Mass.  189 364 

Newton  v.  Seaman's  Society,  130  Mass.  91 130 

New  York  Life  Ins.  Co.  v.  Baker,  165  N.  Y.  484 427 

Nichols  v.  Eaton,  91  U.  S.  716 395 

v.  Coffin,  4  Allen,  27 258,  259 

Nickerson  v.  Buck,  12  Gush.  332 470 

Nightingale  v.  Burrell,  15  Pick.  104 193 

Nudd  v.  Powers,  136  Mass.  273      159, 188,  246 


O 

Gates  v.  Cooke,  3  Burr.  1684 364 

O'Brien  v.  New  England  Trust  Co.,  183  Mass.  186 62 


XXil  TABLE    OF   CASES   CITED 

PAGE 

Odell  v.  Odell,  10  Allen,  1 202-205 

Ogden  v.  Pattee,  149  Mass.  82 241 

Olliffe  v.  Wells,  130  Mass.  221 361 

Olney  v.  Hall,  21  Pick.  311      192 

v.  Levering,  167  Mass.  446 227 

Oppenheim  v.  Henry,  9  Hare,  802,  n 129 

Otis  v.  Coffin,  7  Gray,  511 285 

—  v.  Prince,  10  Gray,  581 117 

Over-ton  v.  Lea.,  108  Tenn.  505 175 


P 

Paine  v.  Parsons,  14  Pick.  318 265 

Paine,  Petr.,  176  Mass.  242 215 

Palms  v.  Palms,  68  Mich.  355 203 

Parker  v.  Coburn,  10  Allen,  82 267 

-  v.  lasigi,  138  Mass.  416 234 

v.  Sears,  117  Mass.  513 337 

Parrott  v.  Avery,  159  Mass.  594 233 

Parsons  v.  Winslow,  16  Mass.  361      411 

Pastene  v.  Bonine,  166  Mass.  85 228 

Peabody  v.  Norfolk,  98  Mass.  452 67 

Perkins  v.  Ladd,  114  Mass.  420 309 

—  v.  Mathes,  49  N.  H.  107.    . 236 

Peter  v.  Beverly,  10  Pet.  532 324 

Philips  v.  Chamberlaine,  4  Vesey,  51 129 

Phipps  v.  Ackers,  9  Cl.  &  Fin.  583 189 

—  v.  Williams,  5  Sim.  44 189 

Pickens  v.  Davis,  134  Mass.  252 304 

Pierce  v.  Proprietors,  10  R.  I.  227      81 

Pierson  v.  Garnet,  2  B.  C.  C.  39 284 

Pinkham  v.  Blair,  57  N.  H.  226      222 

Plympton  v.  Boston  Dispensary,  106  Mass.  544      411 

Pollard  v.  Pollard,  1  Allen,  490 249,  290 

Poole.  v.  Munday,  103  Mass.  74     102 

-  v.  Poole,  L.  R.  7.  Ch.  17 257 

Porter  v.  Howe,  173  Mass.  521 246,  248, 249 

Pratt  v.  Rice,  7  Gush.  209 146 

Prescott  v.  Prescott,  7  Met.  141 297 

Prior  v.  Talbot,  10  Gush.  1      369 

Prudential  Assur.  Co.  v.  Edmonds,  2  App.  Gas.  487 274 

Pruen  v.  Osborne,  11  Sim.  132 215 

Putman  v.  Gleason,  99  Mass.  454 192 


Q 
Quincy  v.  Rogers,  9  Gush.  291 137 


TABLE    OF   CASES   CITED  XX111 

R 

PAGE 

Read  v.  Devaynes,  3  Bro.  Ch.  95 172 

Re  Earl  of  Chesterfield's  Trusts,  24  Ch.  D.  643 416 

Llewellyn,  29  Beav.  171     416 

Walker's  Estate,  12  Ch.  D.  205 437 

Way's  Trusts,  2  De  Gex,  Jones  &  Smith,  365 2 

Richards  v.  Humphreys,  15  Pick.  133 238,  264,  265 

Richardson  v.  Hall,  124  Mass.  228 96, 145,  230,  249 

v.  Stodder,  100  Mass.  528 361 

Robertson  v.  Quiddington,  28  Beav.  529 67 

Robinson  v.  Simmons,  146  Mass.  167 313 

Rogers  v.  Daniell,  8  Allen,  343 258 

v.  Pittis,  1  Add.  30 483 

Rollwagen,  v.  Rollwagen,  63  N.  Y.  504 476 

Roquet  v.  Eldridge,  118  Ind.  147 266 

Rose  v.  Gould,  15  Beav.  189 258 

v.  Porter,  141  Mass.  309 489 

Ross  v.  Tremain,  2  Met.  295 165 

Rotch  v.  Levering,  169  Mass.  190     191,  302 

Russell  v.  Loring,  3  Allen,  121 402 


S 

Sage  v.  Woodin,  66  N.  Y.  578,  581 101 

Saltonstall  v.  Sanders,  11  Allen,  446 453 

Sanderson  v.  White,  18  Pick.  328,  334 206 

Saunders  v.  Drake,  2  Atk.  466 284 

Schumaker  v.  Schmidt,  44  Ala.  454 140 

Scott  v.  Riley,  16  Phila.  106 81 

Sears  v.  Hardy,  120  Mass.  524 129,  302, 445 

v.  Putnam,  102  Mass.  5 198,  204 

v.  Russell,  8  Gray,  86     193, 197 

Seaver  v.  Griffing,  176  Mass.  59 493 

Security  Co.  v.  Brinley,  49  Conn.  48 264 

Selwyns's  Case,  3  Hagg.  Eccl.  Rep.  748 7 

Sewall  v.  Wilmer,  132  Mass.  131 .'  .    .     18,  68 

Shannon  v.  Whitney,  109  Mass.  146 15 

Shaw  v.  Cordis,  143  Mass.  443 427 

—  v.  Paine,  12  Allen,  293 374 

Shearer  v.  Shearer,  98  Mass.  107 5 

Shelley's  Case,  1  Co.  88  b.,  101  a 190 

Shelton  v.  Hadlock,  62  Conn.  140      293 

Sherman  v.  Page,  85  N.  Y.  123 18 

Shreve  v.  Shreve,  176  Mass.  456 190 

Shuttleworth  v.  Greaves,  4  Myl.  &  Cr.  35 294 

Sibley  v.  Cook,  3  Atk.  572 294 


XXIV  TABLE    OF   CASES   CITED 

PAGE 

Sibley  ».  Perry,  7  Ves.  522 215 

Slaney  v.  Watney,  Law  Rep.  2  Eq.  418 172 

Slark  v.  Dakyns,  10  Ch.  App.  35 207 

Sloane  v.  Stevens,  107  N.  Y.  122 146,  254 

Slocomb  v.  Slocomb,  13  Allen,  38 13 

Smell  v.  Dee,  2  Salk,  415 273 

Smith  v.  Ayres,  101  U.  S.  320 103 

—  v.  Everett,  27  Beav.  446 67 

—  v.  Harrington,  4  Allen,  566 4.39,  440 

Society  for  Promoting  Education  v.  Attorney-General,   135 

Mass.  285 164 

Sparhawk  v.  Sparhawk,  114  Mass.  356 367 

Stackpole  v.  Howell,  13  Ves.  417 .  172 

Staigg  v.  Atkinson,  144  Mass.  564 5 

Stanwood  v.  Owen,  14  Gray,  195 104 

Stearns  v.  Palmer,  10  Met.  32 364 

Steel  v.  Cook,  1  Met.  281 300 

Sterrett  v.  Barker,  119  Cal.  492 102 

Stetson  v.  Day,  51  Maine,  434 410 

Stevenson  v.  Abingdon,  31  Beav.  305 215 

Stivers  v.  Gardner,  88  Iowa,  307 175 

Stockbridge,  Petr.,  145  Mass.  517 274 

Stone  v.  Framingham,  109  Mass.  303 205 

Sturgis  v.  Paine,  146  Mass.  354 130 

Sumner  v.  Crane,  155  Mass.  483 3,  309 

Swaine  v.  Burton,  15  Ves.  365 221 

Swett  v.  Boston,  18  Pick.  123 402 

v.  Button,  109  Mass.  589 222 

Sweetland  «;.  Sweetland,  4  Sw.  &  T.  6 471 


T 

Taft  v.  Taft,  130  Mass.  461 192 

Talbot  v.  Chamberlain,  149  Mass.  57 13 

Talbott  v.  Hamill,  151  Mo.  292 185 

Tanton  v.  Keller,  167  111.  129 265 

Taylor  v.  Means,  4  De  G.,  J.  &  S.  597      466 

v.  Taylor,  145  Mass.  239 258 

-  v.  Taylor,  L.  R.  17  Eq.  324 246 

Thayer  v.  Boston,  15  Gray,  347 209 

v.  Finnegan,  134  Mass.  62      153 

v.  Pressey,  175  Mass.  225 227 

v.  Wellington,  9  Allen,  283 299 

Thellusson  v.  Woodford,  4  Ves.  227;  s.  c.  11  Ves.  112  ....  202 

Thorndike  v.  Loring,  15  Gray,  391 204,  208 

Throckmorton  v.  Holt,  180  U.  S.  552 304 

Tilden  v.  Green,  130  N.  Y.  29 465 


TABLE    OF   CASES   CITED  XXV 

PAGE 

Tilden  v.  Tilden,  13  Gray,  103 144 

Tillinghast  v.  Cook,  9  Met.  143      158 

Tobey  v.  Moore,  130  Mass.  448 206 

Tomlinson  v.  Bury,  145  Mass.  346 236,  249 

Toms  v.  Williams,  41  Mich.  552 203 

Towle  v.  Swasey,  106  Mass.  100 236,  248,  249,  250 

Towne  v.  Weston,  132  Mass.  513 301 

Towns  v.  Wentworth,  11  Moore  P.  C.  526 234 

Treadwell  v.  Cordis,  5  Gray,  341 258,310 

Turner  v.  Hallowell  Sav.  Inst.,  76  Me.  527  .    .    .   ." 177 

Twitty  v.  Martin,  90  N.  C.  643      293 


U 

Underwood  v.  Curtis,  127  N.  Y.  523 334 

United  States  v.  Fox,  94  U.  S.  315 127 


V 

Vaughn  v.  Northup,  15  Pet.  1 14 

Vaux  v.  Henderson,  1  Jac.  &  W.  388 220 

Vidal  v.  Girard,  2  How.  127 127 

Viney  v.  Abbott,  109  Mass.  300 3, 433 


W 

Wainwright  v.  Tuckerman,  120  Mass.  232 145 

Wait  v.  Belding,  24  Pick.  129 59 

Wallis  v.  Wallis,  114  Mass.  510 307 

Ward  v.  Ward,  15  Pick.  511 239 

Ware  v.  Rowland,  2  Phill.  635 224 

Wankford  v.  Wankford,  1  Salk.  299 312 

Warner  ».  Beach,  4  Gray,  162 301, 306 

Waters  v.  Stickney,  12  Allen,  1 145 

Webb  v.  Neal,  5  Allen,  575 367 

Webster  v.  Ellsworth,  147  Mass.  602 61 

Wedderburn  v.  Wedderburn,  22  Beav.  84 67 

Welch  v.  Adams,  152  Mass.  74 249,  279,  290 

v.  Brimmer,  169  Mass.  204 191 

Wells  v.  Heath,  10  Gray,  17 205 

West  v.  Ray,  Kay,  Ch.  385 ' 466 

Westcott  v.  Nickerson,  120  Mass.  410 415,  416 

Wharton  v.  Barker,  4  K.  &  J.  498 , 224 

Wheeler  v.  Bent,  7  Pick.  61 304 

v.  Howell,  3  Kay  &  Johns.  198 '.    .    .    .     153 

White  v.  Massachusetts   Institute,  171  Mass.  84    .    .     185,  248,  494 


XXVI  TABLE    OF   CASES   CITED 

PAGE 

Whiting's  Appeal,  67  Conn.  379 61 

Whitney  v.  Twombly,  136  Mass.  145 48 

Wilbanks  v.  Wilbanks,  18  111.  17 61 

Wilcox  v.  Wilcox,  13  Allen,  252 235 

Wild  v.  Davenport,  48  N.  J.  Law.  129 102 

Wilding  v.  Bolder,  21  Beav.  222 366 

Wilkins  v.  Young,  144  Ind.  1 99 

Wilkinson  v.  Duncan,  23  Beav.  469 416 

Williams  v.  Bradley,  3  Allen,  270 366,  400 

—  v.  Corbet,  8  Sim.  349 390 

—  v.Williams,  142  Mass.  515 304 

Williamson  t;.  Williamson,  6  Paige,  293 290 

Willis  v.  Sharp,  113  N.  Y.  586 103 

Wilmarth  v.  Bridges,  113  Mass.  407 61 

Wilson  v.  Wilson,  145  Mass.  490 366 

Wilton  v.  Humphreys,  176  Mass.  253 467 

Wingfield  v.  Wingfield,  9  Ch.  D.  658 220 

Winsor  v.  Mills,  157  Mass.  362 195 

Withy  v.  Mangles,  4  Beav.  358;  10  Cl.  &  Fin.  215 222 

Wood  v.  Gaynor,  1  Ambl.  395 150 

—  v.  Thomas,  [1891],  3  Ch.  482 422 

Woodbridge  v.  Winslow,  170  Mass.  388 195 

Woodcock  v.  Woodcock,  152  Mass.  353 229 

Worcester  v.  Worcester,  101  Mass.  128 215,  295 

Workman  v.  Workman,  2  Allen,  472 296 

Wright  v.  Gilbert,  51  Md.  146 14 

v.  Trustees  of  Methodist  Episcopal  Church,  Hoffm.  Ch. 

202 294 

Wynn  v.  Bartlett,  167  Mass.  292 299 


Y 

Yeomans  v.  Stevens,  2  Allen,  349 300 

Young's  Estate,  123  Cal.  337 130 


TESTAMENTARY  FORMS  AND 
NOTES  ON  WILLS 

CHAPTER  I 

REASONS  FOR  MAKING  A  WILL 

THE  observation  is  frequently  made  that  the 
intention  and  purpose  of  a  person  can  sometimes 
be  the  better  carried  out  by  a  trust  deed  than  by 
will.  There  are,  however,  grave  objections  to  this 
method  of  dispensing  with  the  making  of  a  will.  It 
is  true  that  if  the  trust  applies  only  to  personalty  it 
is  a  private  affair  and  the  instrument  need  not  be 
recorded  anywhere.  However,  if  realty  is  included 
the  deed  must  be  recorded  at  the  registry  of  deeds 
and  thus  become  a  matter  of  public  knowledge. 
The  contention  may  perhaps  be  successfully  raised 
in  some  jurisdictions  that  the  transaction  is  void 
because  intended  to  be  testamentary  in  its  character 
and  as  an  evasion  of  the  provisions  of  law  regulat- 
ing the  execution  of  last  wills  and  testaments.  If 
realty  is  included  and  the  instrument  is  recorded 
at  the  registry  of  deeds,  this  very  publicity  may 
prove  to  the  settlor  unpleasant  and  embarrassing. 
Very  few  would  care  thus  to  advertise  their  affairs 
long  before  death.  Again,  if  the  trust  is  likely  to  last 

for  any  period  either  previous  to  or  after  the  death 

i 


2  TESTAMENTARY   FORMS 

of  the  party  creating  the  trust,  transfers  of  shares 
may  be  necessary,  and  if  the  trust  consists  only  of 
personalty  and  hence  is  not  recorded,  the  corpora- 
tion counsel  may  object  to  such  transfers  unless 
the  corporation  is  amply  protected. 

It  is  not  proposed  to  give  here  any  forms  of  such 
trust  deeds  or  declarations  of  trust,,  but  counsel 
practising  in  States  which  have  laws  providing  for 
the  taxation  of  legacies  and  successions  will  prob- 
ably find,  if  called  upon  to  draw  such  instruments, 
that  they  come  within  the  provisions  of  such  laws. 

Counsel  may  also  well  consider  the  following 
statement  of  law:  "It  is  immaterial  whether  there 
was  any  other  consideration  than  appears  upon  the 
face  of  the  indenture;  for  even  if  the  settlement 
was  purely  voluntary,  the  case  falls  within  the 
doctrine,  now  well  established  in  equity,  that  a 
voluntary  settlement,  completely  executed,  with- 
out any  circumstances  tending  to  show  mental 
incapacity,  mistake,  fraud,  or  undue  influence,  is 
binding  and  will  be  enforced  against  the  settlor 
and  his  representatives,  and  cannot  be  revoked, 
except  so  far  as  a  power  of  revocation  has  been 
reserved  in  the  deed  of  settlement;  and  that  the 
fact  that  by  the  terms  of  the  deed  the  income  of 
the  property  is  to  be  applied  by  the  trustee  to  the 
benefit  of  the  settlor  during  his  lifetime  does  not 
impair  the  validity  or  effect  of  the  further  trusts 
declared  in  the  instrument.  Ellison  v.  Ellison,  6 
Ves.  656.  Kekewich  v.  Manning,  1  De  Gex,  Macn. 
&  Gord.  176;  Re  Way's  Trusts,  2  De  Gex,  Jones  & 


REASONS   FOR   MAKING   A   WILL  6 

Smith,  365;  Falk  v.  Turner,  101  Mass.  494;  Bunn 
v.  Winthrop,  1  Johns.  Ch.  329;  Dennison  v.  Goehr- 
ing,  7  Barr,  175."  Viney  v.  Abbott,  109  Mass.  300, 
302.  This  matter  of  revocation  should  be  brought 
to  the  attention  of  the  client. 

Assuming  that  a  will  is  preferable  to  a  trust  deed 
we  are  confronted  by  the  affirmation  of  many  that 
they  are  satisfied  with  the  law  providing  for  the 
disposition  of  the  property  of  intestates  and  hence 
they  see  no  reason  for  making  their  wills.  The 
statement  will  not  bear  the  test  of  analysis,  for  the 
very  best  reasons  may  exist  for  the  making  of  a  will, 
even  if  the  testator  intends  to  leave  his  property 
conformably  to  the  laws  providing  for  the  distribu- 
tion of  intestate  estates.  The  settlement  of  estates 
hi  nearly  all  cases  is  facilitated  by  the  clothing  of 
an  executor  with  adequate  power  to  act,  and  a  few 
directions  of  the  testator  may  avoid  embarrassment. 
A  person  of  property,  therefore,  if  some  or  all  of  the 
suggestions  in  this  chapter  are  brought  to  his  atten- 
tion, may  conclude  to  make  a  will,  even  though  he 
disposes  therein  of  his  estate  in  the  same  manner  as 
that  in  which  it  would  pass  by  descent,  if  no  will 
were  made. 

"  A  will  is  valid  which  merely  appoints  an  executor. 
In  the  Goods  of  Lancaster,  1  Sw.  &  Tr.  464;  In  the 
Goods  of  Howard,  L.  R.  1  P.  &  D.  636;  Brown- 
rigg  v.  Pike,  7  P.  D.  61.  And  this  is  so,  even  though 
the  executor  renounces  probate.  In  the  Goods  of 
Jordan,  L.  R.  1  P.  &  D.  555."  Sumner  v.  Crane, 
155  Mass.  483,  484. 


4  TESTAMENTAEY   FORMS 

Many  reasons  may  be  presented  for  making  a 
will,  but  it  is  believed  that  the  following  are 
sufficient. 

I.    A  Will  as  a  Matter  of  Record. 

"The  heirs  of  deceased  persons  usually  do  not 
appear  of  record  anywhere."  Arnold  v.  Reed,  162 
Mass.  438,  440.  This  statement  was  made  in  ref- 
erence to  persons  dying  intestate.  In  such  cases 
conveyancers  are  often  put  to  great  trouble  in 
searching  titles;  for  while  in  most  jurisdictions  an 
inventory  of  the  estate  of  an  intestate  contains  a 
reference  to  the  realty  left  by  him,  yet  sometimes 
where  a  person  has  real  estate  but  little  or  no  per- 
sonalty and  leaves  but  few  or  no  debts,  adminis- 
tration is  not  taken  out  at  all,  and  hence  there  is 
nothing  on  record  giving  the  names  of  inheritors. 
In  the  case  of  a  will  the  law  nearly  everywhere 
makes  a  reference  to  wife  and  children  necessary, 
because,  if  omitted,  they  still  have  certain  rights 
under  the  law;  and  in  some  cases  testators  declare 
who  their  children  are,  as  in  the  following  illustra- 
tion, which  is  taken  from  the  will  of  a  well-known 
man: 

I  declare  that  at  the  date  of  the  execution  of  this 
instrument  my  wife  A.  B.  and  my  son  C.  D.  are 
living;  that  I  have  no  living  children  besides  this 
last  mentioned  son,  and  no  grandchildren  represent- 
ing a  deceased  child  excepting  E.  F.  and  G.  H.,  the 
minor  children  of  my  deceased  son  I.  J. 


REASONS    FOR   MAKING   A   WILL  5 

A  form  like  the  following  may  be  used: 

A.  B.,  C.  D.,  E.  F.,  and  G.  H.  named  in  this  will  are 
my  only  children  and  issue  now  living. 

II.  Trouble   over  Dower. 

In  States  where  the  common-law  right  of  dower 
exists,  difficulties  attending  the  setting  off  of  dower 
may  be  avoided  by  the  making  of  a  will.  The 
inducement  to  make  a  will  is  all  the  more  impera- 
tive if  the  testator  is  living  with  a  second  wife  who 
is  not  in  harmony  with  the  children  by  the  first 
wife.  So,  too,  if  the  testator  owns  lands  hi  other 
jurisdictions  than  that  of  his  domicile  (Staigg  v. 
Atkinson,  144  Mass.  564),  or  is  a  member  of  a  part- 
nership which  has  real  estate  holdings.  Shearer  v. 
Shearer,  98  Mass.  107. 

III.  Defeating  Waiting  Heirs. 

The  propriety  of  making  a  will  in  cases  where 
there  are  offensive  relations  anxious  to  inherit  may 
be  shown  by  the  following  illustration: 

A.  and  B.  are  brothers  or  sisters.  They  are  un- 
married, their  parents  are  dead,  and  they  have  no 
other  brothers  or  sisters.  They  have  distant  rela- 
tives who  are  waiting  for  their  money,  but  their 
desire  is  to  remember  charities  or  certain  friends. 
Let  them  make  wills,  each  giving  the  other  the  net 
income  of  his  or  her  property  during  life,  the  princi- 
pal, upon  the  life  tenant's  decease,  to  go,  discharged 
of  all  trust,  to  the  charities  or  the  friends.  On  the 


6  TESTAMENTARY   FORMS 

death  of  either,  the  trust  may  be  carried  out  as  to 
the  one  so  dying,  as,  the  survivor  being  sole  heir, 
there  is  no  one  to  contest  the  will,  and  that  sur- 
vivor may  then  destroy  his  own  will.  The  property 
of  one  of  them  may  thus  go  as  the  testator  desires 
without  any  fear  of  litigation.  If  A.  and  B.  are 
possessed  of  ample  means,  each  may  give  his  property 
by  will  directly  to  the  charity  or  to  the  friends, 
and  on  the  death  of  one  the  will  cannot  be  con- 
tested by  waiting  heirs. 

IV.  The  Marshalling  of  Assets  to  Pay  Debts  and  Legacies. 

Suppose  a  person  who  is  satisfied  with  the  laws 
of  intestacy  has  many  obligations,  and  also  assets 
of  considerable  magnitude  and  value  but  not  readily 
marketable.  If  he  is  likely  to  leave  little  ready  money 
he  may  make  a  will  for  two  reasons,  —  one  to  appoint 
as  executor  a  person  who  is  both  competent  and 
familiar  with  his  affairs,  and  the  other  to  give  the 
executor  instructions  as  to  what  interests  to  dis- 
pose of  for  the  liquidation  of  obligations  and  as 
to  what  methods  to  pursue  in  order  to  husband 
resources. 

V.  Trusts. 

In  some  jurisdictions  it  has  been  decided  that  the 
founder  of  a  trust  can  secure  the  income  thereof  to 
the  cestui  que  trust  by  providing  that  it  shall  not  be 
alienable  by  him,  or  be  subject  to  be  taken  by  his 
creditors.  A  testator  may  therefore  put  the  share 
of  a  child  whose  deportment  is  unsatisfactory  in 


REASONS    FOR   MAKING   A   WILL  7 

trust,  and  provide  that  the  income  shall  not  be 
alienable  by  him,  either  by  assignment  or  by  any 
other  method,  and  that  the  same  shall  not  be  subject 
to  be  taken  by  his  creditors  by  any  legal  process 
whatever,  and  .shall  not  pass  in  any  event  to  his 
assignee  or  trustee  under  any  trust  deed  that  may 
be  executed  by  him  or  under  any  insolvent  or  bank- 
rupt law,  State  or  National. 

VI.  Concurrent  Deaths. 

Suppose  A.  and  B.  are  wealthy  unmarried  brothers 
and  they  have  only  remote  relatives,  to  whom  they 
do  not  wish  their  property  to  go.  If  they  travel 
much  together,  the  making  of  wills  is  advisable;  as 
in  the  event  of  their  being  killed  at  the  same  time, 
not  leaving  wills,  the  remote  relatives  will  take  their 
estates. 

Many  perplexing  questions  arise  as  to  the  inherit- 
ance of  property  in  the  case  of  concurrent  deaths. 
See  Mason  v.  Mason,  1  Meriv.  308;  Selwyns's  Case, 
3  Hagg.  Eccl.  Rep.  748;  Batchelder,  Petitioner, 
147  Mass.  465;  Coye  v.  Leach,  8  Met.  371. 

VII.  Directions  as  to  Division  of  Property. 

Statutes  providing  for  the  distribution  of  intes- 
tate estates  sometimes  promote  inequalities. 

Suppose  a  man  is  living  with  his  second  wife,  who 
is  distasteful  to  the  children  of  his  first  wife.  It  may 
be  advisable  to  make  a  will  giving  the  second  wife 
practically  what  the  law  would  give  her  if  he  left 
no  will,  and  providing  that  as  a  part  of  her  share 


8  TESTAMENTARY   FORMS 

the  homestead  shall  be  hers  in  fee,  and  all  the  furni- 
ture and  personal  effects  shall  be  hers  absolutely. 
Differences  with  the  children  are  thus  likely  to  be 
avoided. 

Where  a  man  is  living  with  a  second  wife  and 
has  had  children  by  both  wives,  he  may  deem  it 
best  to  make  a  will,  because  of  certain  inequalities 
occasioned  by  the  laws  providing  for  the  distribu- 
tion of  intestate  estates.  Suppose  that  he  is  worth 
three  hundred  thousand  dollars,  and  that  according 
to  the  laws  of  his  domicile  the  widow  of  an  intestate 
is  entitled  to  one-third  and  his  children  to  two- 
thirds  of  his  estate.  Suppose  that  he  has  three 
children  by  his  first  wife,  all  living,  and  that  he  has 
one  child  by  his  second  wife,  also  living.  In  the 
event  of  intestacy,  the  widow  and  her  child  will 
take  one-half  of  the  estate,  and  each  of  the  three 
children  by  the  first  wife  one-sixth.  In  such  case 
it  is  probable  that  the  widow  will  leave  her  entire 
property  to  her  own  child,  so  that  he  will  ultimately 
receive  three  tunes  the  amount  received  by  each  of 
his  half-brothers  or  half-sisters.  A  man  may  make  a 
will  to  redress  this  inequality  by  inserting  therein  a 
provision  like  the  following,  having  first  given  his 
second  wife  one-third  of  his  estate  and  the  children 
by  the  first  wife  the  other  two-thirds,  to  be  equally 
divided  among  them: 

I  make  no  provision  hi  this  will  for  my  son  A.  B., 
who  is  the  only  child  by  my  present  wife,  as  I  have 
already  given  his  mother  in  this  will  one-third  of  my 


REASONS  FOR  MAKING  A  WILL 

entire  estate  and  to  the  children  of  my  first  wife  the 
remainder.  I  assume  that  she  will  leave  her  entire 
property  to  her  son;  in  which  event  he  will  receive 
from  what  was  originally  my  estate  considerably 
more  than  any  one  of  his  half-brothers  and  half-sisters 
will  receive.  I  trust  that  he  will  appreciate  the  fact 
that  this  disposition  of  my  property  is  prompted 
by  a  spirit  of  fairness  and  is  in  no  sense  intended 
to  emphasize  a  distinction  founded  on  favor  and 
preference. 

Reference  may  be  had  here  to  disinheriting  an 
hen:  or  one  who  is  next  of  kin  of  the  testator.  If 
the  testator  declares  that  he  disinherits,  for  example, 
a  son,  and  he  dies  intestate  as  to  any  portion  of 
his  estate,  the  son  would  take  his  share  thereof.  The 
testator  should  take  care  to  dispose  by  will  of  his 
entire  estate.  Even  then,  local  statutes  should  be 
carefully  examined. 

VIII.    Executors,  Sureties   on  Bond,  and  Powers  of  Sale. 

The  law  may  provide  that  a  widow  is  entitled  to 
administration.  This  responsibility  she  may  not 
seek,  and  her  inexperience  may  also  be  an  objection. 

A  testator  may  by  will  name  his  own  executor. 
Again,  the  statutes  providing  for  releasing  an  ad- 
ministrator from  giving  a  bond,  or  surety  or  sureties 
on  his  bond,  may  require  the  observance  of  annoying 
formalities,  while  those  permitting  a  testator  to 
release  his  executor  by  will  may  require  only  notice 
to  creditors. 


10  TESTAMENTARY   FORMS 

Again,  also,  an  administrator  nearly  everywhere 
cannot  sell  real  estate,  and  sometimes  personal 
property,  without  an  order  of  court.  In  such  cases 
the  petition  to  the  court  must  specify  with  par- 
ticularity the  property  to  be  sold.  In  the  case  of  a 
will,  a  carefully  worded  power  of  sale  will  give  an 
executor  ample  authority,  thus  avoiding  expense 
and  providing  a  quick  method  of  procedure. 

IX.    Special  Instructions. 

Many  matters  of  importance  may  be  referred  to 
in  a  will,  such  as  special  instructions,  the  observance 
of  which  may  facilitate  the  settlement  of  the  estate, 
the  saving  of  money,  and  the  carrying  out  of  the 
testator's  wishes,  without  interfering  with  the  set- 
tlement of  the  estate  if  given  according  to  the  laws 
providing  for  intestacy. 

It  is  perhaps  the  duty  of  an  administrator  in  most 
jurisdictions  to  insure  the  intestate's  property,  but 
a  testator  may  desire  to  give  particular  instructions 
on  the  subject.  He  may  desire  to  give  directions 
as  to  fully  insuring  all  his  interests,  or,  having 
always  been  his  own  underwriter,  he  may  be  in- 
clined to  instruct  his  executor  not  to  insure  at  all. 

It  may  be  advisable  to  give  directions  as  to  carry- 
ing on  the  testator's  business  for  a  period  long 
enough  prudently  to  liquidate  obligations  and  effec- 
tually to  husband  resources.  Without  such  instruc- 
tions contained  in  a  will  an  administrator  might  be 
subject  to  legal  limitations  and  restraints  necessitat- 
ing a  too  hasty  settlement  of  the  estate. 


REASONS  FOR  MAKING  A  WILL         11 

The  compensation  of  an  administrator  is  not 
always  commensurate  with  the  services  rendered. 
A  testator  may  make  a  will  for  the  very  purpose  of 
fixing  the  executor's  charges.  If  his  affairs  are  so 
involved  as  to  require  in  adjustment  much  skill, 
patience,  tune,  and  experience,  he  may  provide  in  the 
will  liberal  remuneration.  If  the  estate  is  invested 
in  sound  securities  and  there  are  few  obligations, 
he  may  provide  for  a  smaller  compensation.  Some- 
times an  executor  is  given  a  legacy  in  lieu  of  all 
charges  for  services. 

The  statutes  providing  for  advances  to  children 
may  not  be  satisfactory,  and  a  will  may  be  drawn, 
for  the  purpose  of  expressly  providing  as  to  such 
advances. 

In  a  State  where  the  common  law  does  not  allow 
an  administrator  to  pay  for  a  monument,  a  lot  in 
a  cemetery  and  the  care  of  it,  and  where  there  is  no 
statute  providing  that  a  reasonable  amount  expended 
for  a  burial  lot,  the  care  of  it,  and  a  monument  may 
be  allowed  by  the  court  as  part  of  the  funeral  ex- 
penses of  a  testator  or  intestate,  the  whole  matter 
may  be  fully  provided  for  by  will. 

Sometimes  a  will  which  disposes  of  an  estate  as 
it  would  pass  by  law  if  there  were  no  will  contains 
a  provision  imposing  on  a  relative  or  friend  an  obli- 
gation which  has  no  legal  force  and  is  not  intended 
to  have  any.  Frequently  this  is  embodied  in  the 
form  of  a  request  in  a  paper  separate  from  the  will 
and  merely  alluded  to  therein. 


CHAPTER   II 

WHERE    A    WILL    MAY    BE    MADE,  AND    ITS    EFFECT 
UPON  PROPERTY  IN  OTHER  JURISDICTIONS 

I.    Where  a  Will  may  be  Made. 

As  a  general  rule  a  will  may  be  made  in  any  part 
of  the  world,  and,  if  executed  according  to  the  law 
of  the  testator's  domicile,  will  be  there  admitted  to 
probate  without  question.  If  an  American  makes 
his  will  while  abroad,  he  should,  if  possible,  have 
as  witnesses  Americans  of  his  own  domicile,  so  that 
there  may  be  no  trouble  in  proving  the  will.  ''The 
will  of  a  person  whose  domicile  at  the  tune  of  his 
death  is  in  this  State  is  a  domestic  will,  and  prop- 
erly admitted  to  original  probate  at  the  place  of 
such  domicile,  without  regard  to  where  the  will  was 
made  or  where  such  person  died.  Manuel  v.  Manuel, 
13  Ohio  St.  559;  Story's  Conflict  of  Laws,  §§  467, 
468."  Converse  v.  Starr,  23  Ohio  St.  491,  498. 

In  many  States,  as  in  Massachusetts,  it  is  provided 
that  "a  will  which  is  made  out  of  the  commonwealth 
and  is  valid  according  to  the  laws  of  the  state  or 
country  in  which  it  was  made  may  be  proved  and 
allowed  in  this  commonwealth,  and  shall  there- 
upon have  the  same  effect  as  if  it  had  been  executed 
according  to  the  laws  of  this  commonwealth."  Rev. 
Laws,  c.  135,  §  5.  Accordingly  A.,  domiciled  in 

12 


WHERE   A   WILL  MAY   BE   MADE  13 

Massachusetts,  may  go  into  another  jurisdiction 
and  excute  his  will  there  with  only  two  witnesses  as 
there  required,  and  the  will  may  be  probated  in 
Massachusetts  where  three  witnesses  are  required. 
Bayley  v.  Bailey,  5  Gush.  245;  Crippen  v.  Dexter, 
13  Gray,  330.  This  statute  has  been  held  to  apply 
to  nuncupative  wills.  Slocomb  v.  Slocomb,  13 
Allen,  38.  It  is  better,  perhaps,  always  to  execute 
the  will  according  to  the  law  of  the  testator's 
domicile. 

Complications  may  arise  in  the  case  of  the  change 
of  domicile  after  making  a  will. 

A  citizen  of  South  Carolina  executed  his  will  so 
as  to  be  a  valid  bequest  of  personal  property  ac- 
cording to  the  law  of  that  State,  but  not  of  New 
York.  He  subsequently  established  his  domicile 
and  died  in  New  York.  It  was  held  that  he  died 
intestate  in  respect  to  personal  property  within  the 
jurisdiction  of  New  York.  Moultrie  v.  Hunt,  23 
N.  Y.  394.  If  a  person  having  made  his  will  accord- 
ing to  the  law  of  his  domicile  changes  his  domicile, 
it  is  better  to  re-execute  the  will  according  to  the 
laws  of  the  last  domicile,  and  perhaps  rewrite  it. 

If  an  insane  person  of  sufficient  mental  capacity 
to  change  his  domicile  in  good  faith  removes  to 
another  State  during  proceedings  for  the  appoint- 
ment of  a  guardian,  and  if  his  residence  continues 
there  until  death,  and  is  assented  to  by  his  guardian, 
he  is  such  a  resident  of  that  State  that  its  courts 
have  jurisdiction  of  the  original  probate  of  his  will. 
Talbot  v.  Chamberlain,  149  Mass.  57. 


14  TESTAMENTARY   FORMS 

A  person  may  declare  his  domicile,  as  in  the  case 
of  the  will  of  Cecil  John  Rhodes,  the  commencement 
of  which  is  as  follows: 

I  the  Right  Honourable  Cecil  John  Rhodes  of 
Cape  Town  in  the  Colony  of  the  Cape  of  Good  Hope 
hereby  revoke  all  testamentary  dispositions  here- 
tofore made  by  me  and  declare  this  to  be  my  last 
Will  which  I  make  this  first  day  of  July  1899. 

1.  I  am  a  natural-born  British  subject  and  I  now 
declare  that  I  have  adopted  and  acquired  and 
hereby  adopt  and  acquire  and  intend  to  retain 
Rhodesia  as  my  domicile. 

II.  Effect  of  a  Will  upon  Property  in  other  Jurisdictions. 
It  is  well  for  a  person  contemplating  making  a 
will  to  understand  that  every  grant  of  administra- 
tion is  confined  to  the  territory  of  the  government 
which  grants  it,  and  whatever  operation  is  allowed 
to  it  in  other  States  or  countries  is  a  mere  matter 
of  comity.  Vaughn  v.  Northup,  15  Pet.  1,  5;  Wright 
v.  Gilbert,  51  Md.  146,  152.  So  if  he  dies  intestate 
with  personal  property  in  foreign  jurisdictions,  the 
administration  granted  in  the  State  of  his  domicile 
is  the  general  administration.  Harvey  v.  Richards, 
1  Mason,  381.  And  the  administration  in  the  foreign 
jurisdiction  is  ancillary,  the  usual  practice  being  for 
the  administrator  in  the  ancillary  jurisdiction  to 
remit  the  balance  of  the  personal  estate,  after  pay- 
ment of  debts,  to  the  administrator  in  the  original 
jurisdiction;  or,  if  the  laws  as  to  distribution  are 


EFFECT   OF   WILL   IN   OTHER  JURISDICTIONS        15 

identical  in  both  jurisdictions,  not  to  remit  it  but 
to  order  distribution  to  the  heirs.  Harvey  v.  Rich- 
ards, ubi  supra;  Shannon  v.  Whitney,  109  Mass. 
146. 

In  some  jurisdictions  there  are  statutes  providing 
that  if  administration  is  taken  out  in  State  A.  on 
the  estate  of  a  person  of  another  State,  his  estate  in 
State  A.  shall,  after  payments  of  debts,  be  disposed 
of  according  to  his  will,  if  he  leave  any;  otherwise 
his  real  property  shall  descend  according  to  the 
laws  of  State  A.,  and  his  personal  property  shall  be 
disposed  of  according  to  the  laws  of  his  own  State; 
that,  after  payment  of  debts  in  State  A.,  the  residue 
of  the  personalty  may  be  distributed  as  already 
provided,  or,  in  the  discretion  of  the  court,  may  be 
transmitted  to  the  executor  or  administrator,  if 
any,  in  the  State  of  which  the  deceased  was  an 
inhabitant.  There  is  also  a  provision  as  to  the  set- 
tlement of  the  estate  where  the  deceased  was 
insolvent. 

It  is  always  well  to  remember  that  the  descent, 
alienation,  and  transfer  of  real  estate  are  con- 
trolled by  the  law  of  the  jurisdiction  in  which  it  is 
situated. 

If  a  testator  has  real  or  personal  property  in  a 
jurisdiction  other  than  his  own,  the  following  matters 
deserve  attention: 

1.  His  attorney  should  ascertain  whether  the  laws 
of  that  jurisdiction  provide  for  the  allowance  of  a 
foreign  will.  If  so,  those  laws  should  be  carefully 
examined. 


16  TESTAMENTARY   FORMS 

Often  testators  declare  that  their  wills  shall  apply 
only  to  property  in  a  certain  jurisdiction. 
The  following  are  from  actual  wills: 

I  declare  that  I  expressly  limit  the  application  of 
this  will  to  estates  real  and  personal  within  the 
United  States  of  America. 

I  declare  that  this  my  last  will  and  testament  shall 
not  extend  to  my  property  owned  by  me  in  Eng- 
land or  elsewhere  in  the  United  Kingdom  of  Great 
Britain  and  Ireland  or  to  any  property  owned  by 
me  at  Cannes  or  elsewhere  in  France  as  I  have 
already  disposed  of  all  my  property  in  France  by  a 
separate  will  executed  some  years  ago  according  to 
the  laws  of  the  Republic  of  France  and,  as  I  propose 
to  dispose  of  all  my  property  in  England  by  a 
separate  will  of  even  date  herewith  according  to 
the  laws  of  England,  and  I  hereby  declare  that 
the  revocation  hereinafter  expressed  of  former  wills 
shall  not  extend  to  my  said  French  will,  or  my  said 
English  will,  I  hereby  give,  devise  etc. 

2.  All  tying  up  of  property  or  restraint  upon  its 
alienation  in  the  foreign  jurisdiction,  whether  the 
property  is  real  or  personal,  and  especially  when  it 
is  real,  is  dangerous.  The  author  knows  of  three 
cases  which  caused  great  embarrassment,  the  first 
where  unproductive  real  estate  in  the  foreign  juris- 
diction was  given  specifically  to  a  minor  child  of 
the  testator,  it  being  the  child's  only  property  and 
means  of  support,  and  the  law  of  that  jurisdiction 


EFFECT   OF   WILL   IN    OTHER   JURISDICTIONS       17 

imposed  restraint  on  the  sale  of  a  minor's  real 
estate;  secondly,  where  a  pecuniary  legacy  to  a 
person  who  had  not  been  heard  from  for  many  years 
was  charged  upon  productive  realty  in  a  distant 
city,  thus  clouding  the  title;  and,  thirdly,  where 
valuable  realty  was  given  in  trust,  which  trust  was 
valid  in  the  jurisdiction  of  the  testator  but  void 
where  the  realty  was  located,  because  the  trust  was 
in  violation  of  the  rule  against  perpetuities,  the 
law  hi  that  jurisdiction  being  different  from  that 
which  prevailed  where  the  testator  resided. 

If  a  charitable  bequest  is  made  to  an  institution 
or  corporation  in  another  State,  which  institution 
or  corporation  is  not  qualified  to  take  it,  it  may  be 
necessary  for  the  Legislature  of  that  State  to  pro- 
vide for  the  administration  of  the  trust.  Fellows 
v.  Miner,  119  Mass.  541. 

3.  It  is  advisable  to  look  into  the  law  of  the 
foreign  jurisdiction  as  to  releasing  executors  and 
guardians  and  trustees,  if  it  is  safe  to  create  a  trust, 
from  giving  a  surety  or  sureties  on  their  official 
bonds.    Powers  of  sale  and  all  provisions  designed 
to  facilitate  the  settlement  of  the  estate  should  be 
carefully  drawn. 

4.  It  may  be  advisable  to  execute  the  will  con- 
formably to  the  law  of  the  foreign  jurisdiction  as 
well  as  that  of  the  testator's  domicile,  although  the 
statutes  of  the  foreign  jurisdiction  may  provide  for 
the  allowance  of  a  foreign  will  if  made  conformably 
to  the  law  of  the  testator's  domicile.     See  above, 
p.  15. 


18  TESTAMENTARY   FORMS 

5.  In  every  case  of  a  power  to  appoint  by  a  will 
or  document  executed  in  another  jurisdiction  where 
the  property  is  located,  the  will  of  the  person  to 
execute  the  power  should,  for  safety,  conform  both 
in  /its  provisions  and  its  execution  to  the  laws  of  the 
foreign  jurisdiction  as  well  as  to  those  of  his  own. 
See  Sewall  v.  Wilmer,  132  Mass.  131;  Story,  Conflict 
of  Laws,  §  473  a.     See  p.  68. 

6.  Sometimes  testators  limit  the  appointment  of 
executors  in  point  of  place,  as,  for  example,  by  mak- 
ing A.  executor  for  the  property  in  the  testator's 
domicile,  and  B.  for  the  property  hi  New  York, 
and  C.  for  the  property  in  Illinois.    While  such  a 
limitation  may  be  advisable  in  an  exceptional  case, 
the  objections  to  it  in  most  cases  are  many  and 
obvious.    See  Sherman  v.  Page,  85  N.  Y.  123;  Hunter 
v.  Bryson,  5  Gill  &  J.  483;  Hill  v.  Tucker,  13  How. 
458.    See  p.  309. 

7.  Finally,   submit  the  will  when  finished  to  a 
competent  attorney  in  the  foreign  jurisdiction  and 
adopt  his  suggestions,  if  any,  before  execution,  pro- 
vided they  do  not  conflict  with  the  laws  of  the 
testator's  domicile,  and  execute  the  will  according 
to  the  laws  of  both  jurisdictions. 

8.  Many  treaties  of  this,  country  with  other  powers 
provide  that  the  citizens  and  subjects  of  either  may 
dispose  of  both  personal  and  real  estate  within  the 
jurisdiction  of  the  other. 

The  following  extracts  from  treaties  may  be 
found  in  "Treaties,  Conventions,  etc.,  1776- 
1909": 


EFFECT  OF  WILL  IN  OTHER  JURISDICTIONS     19 

AUSTRIA-HUNGARY 
By  the  Treaty  of  1829  it  is  provided  as  follows: 

ARTICLE   XI 

The  Citizens  or  Subjects  of  each  Party  shall  have 
power  to  dispose  of  their  personal  goods  within  the 
jurisdiction  of  the  other,  by  testament,  donation, 
or  otherwise;  and  their  representatives,  being  citi- 
zens or  subjects  of  the  other  Party,  shall  succeed 
to  their  personal  goods,  whether  by  testament  or 
ab  intestate,  and  may  take  possession  thereof,  either 
by  themselves  or  by  others  acting  for  them,  and 
dispose  of  the  same  at  their  will,  paying  such  dues, 
taxes,  or  charges  only,  as  the  inhabitants  of  the 
country  wherein  the  said  goods  are  shall  be  subject 
to  pay  in  like  cases.  And  in  case  of  the  absence  of 
the  representative,  such  care  shall  be  taken  of  the 
said  goods  as  would  be  taken  of  the  goods  of  a  native 
in  like  case,  until  the  lawful  owner  may  take  meas- 
ures for  receiving  them.  And  if  any  question  should 
arise  among  several  claimants,  to  which  of  them 
said  goods  belong,  the  same  shall  be  decided  finally 
by  the  laws  and  judges  of  the  land  wherein  the  said 
goods  are.  But  this  article  shall  not  derogate  hi 
any  manner  from  the  force  of  laws  already  published, 
or  hereafter  to  be  published,  by  His  Majesty  the 
Emperor  of  Austria,  to  prevent  the  emigration  of 
his  Subjects. 

By  the  Treaty  of  1848  it  is  further  provided: 


20  TESTAMENTARY   FORMS 

ARTICLE    I 

The  citizens  or  subjects  of  the  contracting  Parties 
shall  have  power  to  dispose  of  their  personal  prop- 
erty within  the  States  of  the  other,  by  testament, 
donation,  or  otherwise;  and  their  heirs,  legatees 
and  donees,  being  citizens  or  subjects  of  the  other 
contracting  Party,  shall  succeed  to  their  personal 
property,  and  may  take  possession  thereof,  either 
by  themselves  or  by  others  acting  for  them,  and 
dispose  of  the  same  at  their  pleasure,  paying  such 
duties  only  as  the  inhabitants  of  the  country  where 
the  said  property  lies,  shall  be  liable  to  pay  in  like 
cases. 

ARTICLE   II 

Where,  on  the  death  of  any  person  holding  real 
property,  or  property  not  personal,  within  the 
Territories  of  one  Party,  such  real  property  would, 
by  the  laws  of  the  land,  descend  on  a  citizen  or  sub- 
ject of  the  other,  were  he  not  disqualified  by  the  laws 
of  the  country  where  such  real  property  is  situated, 
such  citizen  or  subject  shall  be  allowed  a  term  of 
two  years  to  sell  the  same;  which  term  may  be 
reasonably  prolonged  according  to  circumstances; 
and  to  withdraw  the  proceeds  thereof,  without 
molestation,  and  exempt  from  any  other  charges 
than  those  which  may  be  imposed  in  like  cases  upon 
the  inhabitants  of  the  country  from  which  such 
proceeds  may  be  withdrawn. 


EFFECT   OF   WILL   IN   OTHER   JURISDICTIONS       21 
ARTICLE    III 

In  case  of  the  absence  of  the  heirs,  the  same  care 
shall  be  taken,  provisionally,  of  such  real  or  personal 
property,  as  would  be  taken  hi  a  like  case  of  property 
belonging  to  the  natives  of  the  country,  until  the 
lawful  owner,  or  the  person  who  has  a  right  to  sell 
the  same  according  to  Article  II,  may  take  measures 
to  receive  or  dispose  of  the  inheritance. 

BAVARIA 

(German  Empire) 

By  the  Treaty  of  1845  it  is  provided  as  follows: 

ARTICLE  n 

Where,  on  the  death  of  any  person  holding  real 
property  within  the  territories  of  one  Party,  such 
real  property  would,  by  the  laws  of  the  land,  descend 
on  a  citizen  or  subject  of  the  other,  were  he  not 
disqualified  by  alienage,  such  citizen  or  subject 
shall  be  allowed  a  term  of  two  years  to  sell  the  same, 
which  term  may  be  reasonably  prolonged  accord- 
ing to  circumstances,  and  to  withdraw  the  proceeds 
thereof,  without  molestation,  and  exempt  from  all 
duties  of  detraction. 

ARTICLE   III 

The  citizens  or  subjects  of  each  of  the  contracting 
parties  shall  have  power  to  dispose  of  their  (real 


22  TESTAMENTARY   FORMS 

and)  personal  property  within  the  States  of  the 
other,  by  testament,  donation,  or  otherwise;  and 
their  heirs,  legatees,  and  donees,  being  citizens  or 
subjects  of  the  other  contracting  Party,  shall  suc- 
ceed to  their  said  (real  and)  personal  property,  and 
may  take  possession  thereof,  either  by  themselves, 
or  by  others  acting  for  them,  and  dispose  of  the  same 
at  their  pleasure,  paying  such  duties  only  as  the 
inhabitants  of  the  country  where  the  said  property 
lies  shall  be  liable  to  pay  in  like  cases. 

ARTICLE   IV 

In  case  of  the  absence  of  the  heirs,  the  same  care 
shall  be  taken  provisionally,  of  such  real  or  personal 
property  as  would  be  taken  in  a  like  case  of  property 
belonging  to  the  natives  of  the  country,  until  the 
lawful  owner,  or  the  person  who  has  the  right  to 
sell  the  same  according  to  Article  II,  may  take 
measures  to  receive  or  dispose  of  the  inheritance. 

ARTICLE  v 

If  any  dispute  should  arise  between  different 
claimants  to  the  same  inheritance,  they  shall  be 
decided  in  the  last  resort  according  to  the  laws, 
and  by  the  judges  of  the  country  where  the  prop- 
erty is  situated. 


EFFECT  OF  WILL  IN  OTHER  JURISDICTIONS     23 

BOLIVIA 
By  the  Treaty  of  1858  it  is  provided: 

ARTICLE   XII 

The  citizens  of  each  of  the  contracting  parties 
shall  have  power  to  dispose  of  their  personal  goods 
within  the  jurisdiction  of  the  other,  by  sale,  donation, 
testament,  or  otherwise,  and  then*  representatives, 
being  citizens  of  the  other  party,  shall  succeed  to 
their  said  personal  goods,  whether  by  testament,  or 
ab  intestato,  and  they  may  take  possession  thereof, 
either  by  themselves  or  others  acting  for  them, 
and  dispose  of  the  same  at  their  will,  paying  such 
duties  only  as  the  inhabitants  of  the  country  where 
such  goods  are,  shall  be  subject  to  pay  in  like  cases. 
And  if  in  the  case  of  real  estate,  the  said  heirs  would 
be  prevented  from  entering  into  the  possession  of 
the  inheritance  on  account  of  their  character  of 
aliens,  there  shall  be  granted  to  them  the  longest 
period  allowed  by  the  law,  to  dispose  of  the  same 
as  they  may  think  proper,  and  to  withdraw  the 
proceeds  without  molestation,  nor  any  other  charges 
than  those  which  are  imposed  by  the  laws  of  the 
country. 

BRAZIL 
By  the  Treaty  of  1828  it  is  provided: 

ARTICLE   XI 

The  citizens  or  subjects  of  each  of  the  contracting 
parties  shall  have  power  to  dispose  of  their  personal 


24  TESTAMENTARY   FORMS 

goods  within  the  jurisdiction  of  the  other,  by  sale, 
donation,  testament  or  otherwise,  and  their  represent- 
atives, being  citizens  or  subjects  of  the  other  party, 
shall  succeed  to  the  said  personal  goods  whether  by 
testament,  or  ab  intestato,  and  they  may  take  pos- 
session thereof,  either  by  themselves,  or  others  act- 
ing for  them,  and  dispose  of  the  same  at  their 
will,  paying  such  dues  only  as  the  inhabitants  of  the 
country,  wherein  said  goods  are  shall  be  subject  to 
pay  in  like  cases;  and  if  in  the  case  of  real  estate, 
the  said  heirs  would  be  prevented  from  entering  into 
the  possession  of  the  inheritance,  on  account  of 
their  character  of  aliens,  there  shall  be  granted  to 
them  the  term  of  three  years,  to  dispose  of  the  same, 
as  they  may  think  proper,  and  to  withdraw  the  pro- 
ceeds without  molestation,  nor  any  other  charges 
than  those  which  are  imposed  by  the  laws  of  the 
country. 

BRUNSWICK  AND  LUNEBURG 

(German  Empire) 

By  the  Treaty  of  1854  it  is  provided: 

ARTICLE   I 

The  citizens  of  each  one  of  the  high  contracting 
parties  shall  have  power  to  dispose  of  their  personal 
property,  within  the  jurisdiction  of  the  other,  sub- 
ject to  the  laws  of  the  State  or  country,  where  the 
domicile  is,  or  the  property  is  found,  either  by  tes- 
tament, donation  or  ab  intestato,  or  in  any  other 
manner;  and  their  heirs,  being  citizens  of  the  other 


EFFECT   OF  WILL   IN   OTHER   JURISDICTIONS       25 

party,  shall  inherit  all  such  personal  estates,  whether 
by  testament  or  ab  intestato,  and  they  may  take 
possession  of  the  same,  either  personally  or  by 
attorney,  and  dispose  of  them  as  they  may  think 
proper,  paying  to  the  respective  governments  no 
other  charges  than  those  to  which  the  inhabitants 
of  the  country  in  which  the  said  property  shall  be 
found  would  be  liable  in  a  similar  case;  and,  hi  the 
absence  of  such  heir,  or  heirs,  the  same  care  shall 
be  taken  of  the  property  that  would  be  taken  in  the 
like  case,  for  the  preservation  of  the  property  of  a 
citizen  of  the  same  country,  until  the  lawful  pro- 
prietor shall  have  had  tune  to  take  measures  for 
possessing  himself  of  the  same;  and  in  case  any 
dispute  should  arise  between  claimants  to  the  same 
succession,  as  to  the  property  thereof,  the  question 
shall  be  decided  according  to  the  laws,  and  by  the 
judges,  of  the  country  in  which  the  property  is 
situated. 

COLOMBIA 
By  the  Treaty  of  1846  it  is  provided: 

ARTICLE   XII 

The  citizens  of  each  of  the  contracting  parties 
shall  have  power  to  dispose  of  their  personal  goods 
or  real  estate  within  the  jurisdiction  of  the  other, 
by  sale,  donation,  testament,  or  otherwise;  and 
their  representatives  being  citizens  of  the  other 
party,  shall  succeed  to  their  said  personal  goods  or 
real  estate,  whether  by  testament  or  ab  intestato  and 


26  TESTAMENTARY   FORMS 

they  may  take  possession  thereof,  either  by  them- 
selves or  others  acting  for  them,  and  dispose  of  the 
same  at  their  will,  paying  such  dues  only  as  the 
inhabitants  of  the  country,  wherein  said  goods  are, 
shall  be  subject  to  pay  in  like  cases. 

FRANCE 
By  the  Treaty  of  1853  it  is  provided: 

ARTICLE   VII 

In  all  the  States  of  the  Union  whose  existing  laws 
permit  it,  so  long  and  to  the  same  extent  as  the  said 
laws  shall  remain  in  force,  Frenchmen  shall  enjoy 
the  right  of  possessing  personal  and  real  property 
by  the  same  title  and  in  the  same  manner  as  the 
citizens  of  the  United  States.  They  shall  be  free  to 
dispose  of  it  as  they  may  please,  either  gratuitously 
or  for  value  received,  by  donation,  testament  or 
otherwise,  just  as  those  citizens  themselves;  and  in 
no  case  shall  they  be  subjected  to  taxes  on  transfer, 
inheritance,  or  any  others  different  from  those  paid 
by  the  latter,  or  to  taxes  which  shall  not  be  equally 
imposed. 

As  to  the  States  of  the  Union  by  whose  existing 
laws  aliens  are  not  permitted  to  hold  real  estate,  the 
President  engages  to  recommend  to  them  the  passage 
of  such  laws  as  may  be  necessary  for  the  purpose  of 
conferring  this  right. 

In  like  manner,  but  with  the  reservation  of  the 
ulterior  right  of  establishing  reciprocity  in  regard 


EFFECT   OF   WILL   IN   OTHER  JURISDICTIONS       27 

to  possession  and  inheritance,  the  Government  of 
France  accords  to  the  citizens  of  the  United  States 
the  same  rights  within  its  territory  hi  respect  to 
real  and  personal  property  and  to  inheritance,  as 
are  enjoyed  there  by  its  own  citizens. 

GREAT  BRITAIN 
By  the  Treaty  of  1899  it  is  provided: 

ARTICLE    I 

Where,  on  the  death  of  any  person  holding  real 
property  (or  property  not  personal),  within  the 
territories  of  one  of  the  Contracting  Parties,  such 
real  property  would,  by  the  laws  of  the  land,  pass 
to  a  citizen  or  subject  of  the  other,  were  he  not  dis- 
qualified by  the  laws  of  the  country  where  such  real 
property  is  situated,  such  citizen  or  subject  shall  be 
allowed  a  term  of  three  years  in  which  to  sell  the 
same,  this  term  to  be  reasonably  prolonged  if  cir- 
cumstances render  it  necessary,  and  to  withdraw 
the  proceeds  thereof,  without  restraint  or  interfer- 
ence, and  exempt  from  any  succession,  probate  or 
administrative  duties  or  charges  other  than  those 
which  may  be  imposed  in  like  cases  upon  the  citizens 
or  subjects  of  the  country  from  which  such  pro- 
ceeds may  be  drawn. 

ARTICLE   II 

The  citizens  or  subjects  of  each  of  the  Contract- 
ing Parties  shall  have  full  power  to  dispose  of  their 


28  TESTAMENTARY   FORMS 

personal  property  within  the  territories  of  the  other, 
by  testament,  donation,  or  otherwise;  and  their 
heirs,  legatees,  and  donees,  being  citizens  or  sub- 
jects of  the  other  Contracting  Party,  whether 
resident  or  non-resident,  shall  succeed  to  their  said 
personal  property,  and  may  take  possession  thereof 
either  by  themselves  or  by  others  acting  for  them, 
and  dispose  of  the  same  at  their  pleasure,  paying 
such  duties  only  as  the  citizens  or  subjects  of  the 
country  where  the  property  lies  shall  be  liable  to 
pay  in  like  cases. 


ARTICLE    III 

In  case  of  the  death  of  any  citizen  of  the  United 
States  of  America  in  the  United  Kingdom  of  Great 
Britain  and  Ireland,  or  of  any  subject  of  Her  Bri- 
tannic Majesty  in  the  United  States,  without  hav- 
ing in  the  country  of  his  decease  any  known  heirs 
or  testamentary  executors  by  him  appointed,  the 
competent  local  authorities  shall  at  once  inform  the 
nearest  consular  officer  of  the  nation  to  which  the  de- 
ceased person  belonged  of  the  circumstance,  in  order 
that  the  necessary  information  may  be  immediately 
forwarded  to  persons  interested. 

The  said  consular  officer  shall  have  the  right  to 
appear  personally  or  by  delegate  in  all  proceedings 
on  behalf  of  the  absent  heirs  or  creditors,  until  they 
are  otherwise  represented. 


EFFECT   OF   WILL   IN   OTHER  JURISDICTIONS       29 
ARTICLE   IV 

The  stipulations  of  the  present  Convention  shall 
not  be  applicable  to  any  of  the  Colonies  or  foreign 
possessions  of  Her  Britannic  Majesty  unless  notice 
to  that  effect  shall  have  been  given,  on  behalf  of 
any  such  Colony  or  foreign  possession  by  Her 
Britannic  Majesty's  Representative  at  Washington 
to  the  United  States  Secretary  of  State,  within  one 
year  from  the  date  of  the  exchange  of  the  ratifica- 
tions of  the  present  Convention. 

It  is  understood  that  under  the  provisions  of  this 
Article,  Her  Majesty  can  in  the  same  manner  give 
notice  of  adhesion  on  behalf  of  any  British  Protec- 
torate or  sphere  of  influence,  or  on  behalf  of  the 
Island  of  Cyprus,  in  virtue  of  the  Convention  of 
the  4th  of  June,  1878,  between  Great  Britain  and 
Turkey. 

The  provisions  of  this  Convention  shall  extend 
and  apply  to  any  territory  or  territories  pertaining 
to  or  occupied  and  governed  by  the  United  States 
beyond  the  seas,  only  upon  notice  to  that  effect 
being  given  by  the  Representative  of  the  United 
States  at  London,  by  direction  of  the  treaty  making 

power  of  the  United  States. 

i 

ARTICLE   V 

In  all  that  concerns  the  right  of  disposing  of  every 
kind  of  property,  real  or  personal,  citizens  or  sub- 
jects of  each  of  the  High  Contracting  Parties  shall 


30  TESTAMENTARY   FORMS 

in  the  Dominions  of  the  other  enjoy  the  rights 
which  are  or  may  be  accorded  to  the  citizens  or 
subjects  of  the  most  favored  nation. 

ARTICLE    VI 

The  present  Convention  shall  come  into  effect 
ten  days  after  the  day  upon  which  the  ratifications 
are  exchanged,  and  shall  remain  in  force  for  ten 
years  after  such  exchange.  In  case  neither  of  the 
High  Contracting  Parties  shall  have  given  notice 
to  the  other,  twelve  months  before  the  expiration  of 
the  said  period  of  ten  years,  of  the  intention  to 
terminate  the  present  Convention,  it  shall  remain 
in  force  until  the  expiration  of  one  year  from  the 
day  on  which  either  of  the  High  Contracting 
Parties  shall  have  given  such  notice. 

The  United  States  or  Her  Britannic  Majesty  shall 
also  have  the  right  separately  to  terminate  the 
present  Convention  at  any  tune  on  giving  twelve 
months'  notice  to  that  effect  in  regard  to  any  Brit- 
ish Colony,  foreign  possession,  or  dependency,  as 
specified  in  Article  IV,  which  may  have  acceded 
thereto. 

ARTICLE   VII 

The  present  Convention  shall  be  duly  ratified  by 
the  President  of  the  United  States,  by  and  with  the 
approval  of  the  Senate  thereof,  and  by  Her  Bri- 
tannic Majesty,  and  the  ratifications  shall  be  ex- 
changed in  London  or  in  Washington. 

In  faith  whereof,  we  the  respective  Plenipotenti- 


EFFECT   OF   WILL   IN   OTHER  JURISDICTIONS       31 


aries,  have  signed  this  Treaty  and  have  hereunto 
affixed  our  seals. 

Done  in  duplicate  at  Washington,  the  second  day 
of  March,  one  thousand  eight  hundred  and  ninety- 
nine.  JOHN  HAY  [SEAL.] 

PAUNCEFOTE      [SEAL.] 

[Note  by  the  Department  of  State] 

The  following  British  colonies  and  possessions 
have  acceded  to  the  Convention  between  the  United 
States  and  Great  Britain  of  March  2,  1899,  relating 
to  the  tenure  and  disposition  of  real  and  personal 
property: 


Cape 

Fiji 

Jamaica 

Bahamas 

Trinidad 

Barbados 

Newfoundland 

New  Zealand 

Leeward  Islands 

Northern  Nigeria 

South  Nigeria 

St.  Vincent 

St.  Lucia 


Falkland  Islands 

St.  Helena 

Sierra  Leone 

Gambia 

Labuan 

Mauritius 

Gold  Coast  Colony 

South  Rhodesia 

Australia 

Cyprus 

Ceylon 

Hongkong 

Straits  Settlements 


British  Honduras 

Grenada 

North  Borneo 

British  Guiana 

Bermuda 

Lagos 

British  New  Guinea 

India,    including    the 

Native  States 
Transvaal 

Orange  River  Colony 
Basutoland  and  Bechu- 

analand  protectorates 


GUATEMALA 

By  the  Treaty  of  1901,  Articles  I,  II,  and  III  are 
identical  with  Articles  I,  II,  and  III  of  the  Treaty 
with  Great  Britain;  and  Article  IV  is  identical  with 
the  first  paragraph  of  Article  VI  of  the  Treaty  with 
Great  Britain. 


32  TESTAMENTARY  FORMS 

HANSEATIC  REPUBLICS 

(Incorporated  into  the  North  German  Union,  July  1, 

1867} 

By  the  Treaty  of  1827  it  is  provided: 

ARTICLE   VII 

The  Citizens  of  each  of  the  contracting  parties 
shall  have  power  to  dispose  of  then*  personal  goods, 
within  the  jurisdiction  of  the  other,  by  sale,  dona- 
tion, testament,  or  otherwise;  and  their  representa- 
tives, being  citizens  of  the  other  party,  shall  succeed 
to  their  personal  goods,  whether  by  testament  or 
ab  intestato,  and  they  may  take  possession  thereof, 
either  by  themselves  or  others  acting  for  them,  and 
dispose  of  the  same  at  their  will,  paying  such  dues 
only  as  the  inhabitants  of  the  country  wherein  said 
goods  are  shall  be  subject  to  pay  in  like  cases;  and 
if,  in  the  case  of  real  estate,  the  said  heirs  would 
be  prevented  from  entering  into  the  possession  of 
the  inheritance,  on  account  of  their  character  of 
aliens,  there  shall  be  granted  to  them  the  term  of 
three  years  to  dispose  of  the  same,  as  they  may 
think  proper,  and  to  withdraw  the  proceeds  with- 
out molestation,  and  exempt  from  all  duties  of 
detraction,  on  the  part  of  the  Government  of  the 
respective  States. 


EFFECT  OF  WILL  IN  OTHER  JURISDICTIONS     33 

HESSE 
(North  German  Confederation) 

By  the  Treaty  of  1844,  provision  is  made  almost 
identical  with  that  in  the  case  of  Bavaria. 

HONDURAS 
By  the  Treaty  of  1864  it  is  provided  as  follows: 

ARTICLE   VIII 

In  whatever  relates  to  the  police  of  the  ports,  the 
lading  and  unlading  of  ships,  the  safety  of  the 
merchandise,  goods,  and  effects,  the  succession  to 
personal  estates  by  will  or  otherwise,  and  the  dis- 
posal of  personal  property  of  every  sort  and  denomi- 
nation, by  sale,  donation,  exchange,  testament,  or  in 
any  other  manner  whatsoever,  as  also  the  adminis- 
tration of  justice,  the  citizens  of  the  two  high  con- 
tracting parties  shall  reciprocally  enjoy  the  same 
privileges,  liberties  and  rights  as  native  citizens, 
and  they  shall  not  be  charged  hi  any  of  these  re- 
spects, with  any  higher  imposts  or  duties  than  those 
which  are  paid  or  may  be  paid  by  native  citizens; 
submitting  of  course  to  the  local  laws  and  regula- 
tions of  each  country  respectively. 

If  any  citizen  of  either  of  the  two  high  contract- 
ing parties  shall  die  without  will  or  testament  in 
any  of  the  territories  of  the  other,  the  Consul- 
General  or  Consul  of  the  nation  to  which  the  de- 


34  TESTAMENTARY   FORMS 

ceased  belonged,  or  the  representative  of  such 
Consul-General  or  Consul  in  his  absence,  shall  have 
the  right  to  nominate  curators  to  take  charge  of 
the  property  of  the  deceased  so  far  as  the  laws  of 
the  country  will  permit,  for  the  benefit  of  the  lawful 
heirs  and  creditors  of  the  deceased,  giving  proper 
notice  of  such  nomination  to  the  authorities  of  the 
country. 

ITALY 

By  the  Treaty  of  1871  it  is  provided  as  follows: 

ARTICLE   XXII 

The  citizens  of  each  of  the  contracting  parties 
shall  have  power  to  dispose  of  their  personal  goods 
within  the  jurisdiction  of  the  other,  by  sale,  dona- 
tion, testament  or  otherwise,  and  their  representa- 
tives, being  citizens  of  the  other  party,  shall  succeed 
to  their  personal  goods,  whether  by  testament  or 
ab  intestato,  and  they  may  take  possession  thereof, 
either  by  themselves  or  others  acting  for  them,  and 
dispose  of  the  same  at  their  will,  paying  such  dues 
only  as  the  inhabitants  of  the  country  wherein  such 
goods  are  shall  be  subject  to  pay  in  like  -cases. 

As  for  the  case  of  real  estate,  the  citizens  and 
subjects  of  the  two  contracting  parties  shall  be 
treated  on  the  footing  of  the  most  favored  nation. 


EFFECT  OF  WILL  IN  OTHER  JURISDICTIONS     35 

JAPAN 
By  the  Treaty  of  1894  it  is  provided  as  follows: 

ARTICLE    I 

In  whatever  relates  to  rights  of  residence  and 
travel;  to  the  possession  of  goods  and  effects  of  any 
kind;  to  the  succession  to  personal  estate,  by  will  or 
otherwise,  and  the  disposal  of  property  of  any  sort 
and  in  any  manner  whatsoever  which  they  may  law- 
fully acquire,  the  citizens  or  subjects  of  each  con- 
tracting party  shall  enjoy  in  the  territories  of  the 
other  the  same  privileges,  liberties,  and  rights,  and 
shall  be  subject  to  no  higher  imposts  or  charges  in 
these  respects  than  native  citizens  or  subjects  or 
citizens  or  subjects  of  the  most  favored  nation. 

KONGO 
By  the  Treaty  of  1891  it  is  provided  as  follows: 

ARTICLE    II 

In  all  that  concerns  the  acquisition,  succession, 
possession  and  alienation  of  property,  real  and 
personal,  the  citizens  and  inhabitants  of  each  of  the 
high  contracting  parties  shall  enjoy  in  the  terri- 
tories of  the  other  all  the  rights  which  the  respective 
laws  accord  or  shall  accord  hi  those  territories  to 
the  citizens  and  inhabitants  of  the  most  favored 
nation. 


36  TESTAMENTARY  FORMS 

MECKLENBURG-SCHWERIN 
(North  German  Union) 

By  the  Treaty  of  1847  it  is  provided  as  follows: 
ARTICLE  x 

The  citizens  or  subjects  of  each  party  shall  have 
power  to  dispose  of  their  personal  property  within 
the  jurisdiction  of  the  other,  by  sale,  donation, 
testament  or  otherwise. 

Their  personal  representatives  being  citizens  or 
subjects  of  the  other  contracting  party,  shall  suc- 
ceed to  their  said  personal  property,  whether  by 
testament  or  ab  intestate.  They  may  take  posses- 
sion thereof,  either  by  themselves  or  by  others 
acting  for  them,  at  their  will,  and  dispose  of  the 
same,  paying  such  duty  only  as  the  inhabitants  of 
the  country  wherein  the  said  personal  property  is 
situated  shall  be  subject  to  pay  in  like  cases.  In 
the  case  of  the  absence  of  the  personal  representa- 
tives, the  same  care  shall  be  taken  of  the  said  prop- 
erty as  would  be  taken  of  a  property  of  a  native  in 
like  case,  until  the  lawful  owner  may  take  measures 
for  receiving  it. 

If  any  question  should  arise  among  several  claim- 
ants to  which  of  them  the  said  property  belongs, 
the  same  shall  be  finally  decided  by  the  laws  and 
judges  of  the  country  wherein  it  is  situated. 

Where,  on  the  decease  of  any  person,  holding  real 
estate  within  the  territories  of  one  party,  such  real 


EFFECT   OF   WILL   IN    OTHER   JURISDICTIONS       37 

estate,  would  by  the  laws  of  the  land  descend  on  a 
citizen  or  subject  of  the  other  were  he  not  disquali- 
fied by  alienage,  such  citizen  or  subject  shall  be 
allowed  a  reasonable  time  to  sell  the  same,  and  to 
withdraw  the  proceeds  without  molestation,  and 
exempt  from  all  duties  of  detraction  on  the  part  of 
the  Government  of  the  respective  States. 

MOROCCO 
By  the  Treaty  of  1836  it  is  provided: 

ARTICLE   XXII 

If  an  American  citizen  shall  die  in  our  country 
and  no  will  shall  appear,  the  Consul  shall  take  pos- 
session of  his  effects;  and  if  there  shall  be  no  Consul, 
the  effects  shall  be  deposited  in  the  hands  of  some 
person  worthy  of  trust,  until  the  party  shall  appear 
who  has  a  right  to  demand  them;  but  if  the  heir  to 
the  person  deceased  be  present,  the  property  shall 
be  delivered  to  him  without  interruption;  and  if  a 
will  shall  appear,  the  property  shall  descend  agree- 
ably to  that  will,  as  soon  as  the  Consul  shall  declare 
the  validity  thereof. 

OTTOMAN  EMPIRE 

A  protocol  was  proclaimed  by  the  President  of 
the  United  States,  October  29,  1874,  as  to  the  right 
to  hold  real  estate  in  Turkey.  The  law  of  the  Otto- 
man Empire  provides  as  follows: 


38  TESTAMENTARY   FORMS 

ARTICLE    IV 

Foreigners  have  the  privilege  to  dispose,  by  dona- 
tion or  by  testament,  of  that  real  estate  of  which 
such  disposition  is  permitted  by  law. 

As  to  that  real  estate  of  which  they  may  not  have 
disposed  or  of  which  the  law  does  not  permit  them 
to  dispose  by  gift  or  testament,  its  succession  shall 
be  governed  in  accordance  with  Ottoman  law. 

PARAGUAY 

By  the  Treaty  of  1859  it  is  provided  as  follows: 
ARTICLE  x 

In  whatever  relates  to  the  police  of  the  ports,  the 
lading  or  unlading  of  ships,  the  warehousing  and 
safety  of  merchandise,  goods  and  effects,  the  suc- 
cession to  personal  estates  by  will  or  otherwise,  and 
the  disposal  of  personal  property  of  every  sort  and 
denomination,  by  sale,  donation,  exchange  or  testa- 
ment, or  in  any  other  manner  whatsoever,  as  also 
with  regard  to  the  administration  of  justice,  the 
citizens  of  each  contracting  party  shall  enjoy  in  the 
territories  of  the  other,  the  same  privileges,  liberties 
and  rights  as  native  citizens,  and  shall  not  be  charged, 
in  any  of  these  respects,  with  any  other  or  higher 
imposts  or  duties  than  those,  which  are  or  may  be 
paid  by  native  citizens,  subject  always  to  the  local 
laws  and  regulations  of  such  territories. 

In  the  event  of  any  citizen  of  either  of  the  two 


EFFECT   OF   WILL   IN    OTHER   JURISDICTIONS        39 

contracting  parties  dying  without  will  or  testament 
in  the  territory  of  the  other  contracting  party,  the 
Consul  General,  Consul  or  Vice  Consul  of  the  nation 
to  which  the  deceased  may  belong,  or,  hi  his  absence, 
the  Representative  of  such  Consul  General,  Consul  or 
Vice  Consul,  shall,  so  far  as  the  laws  of  each  country 
will  permit,  take  charge  of  the  property  which  the 
deceased  may  have  left,  for  the  benefit  of  his  lawful 
heirs  and  creditors,  until  an  executor  or  adminis- 
trator be  named  by  the  said  Consul  General,  Consul 
or  Vice  Consul,  or  his  Representative. 

RUSSIA 
By  the  Treaty  of  1832  it  is  provided  as  follows: 

ARTICLE    X 

The  citizens  and  subjects  of  each  of  the  high 
contracting  parties  shall  have  power  to  dispose  of 
their  personal  goods  within  the  jurisdiction  of  the 
other,  by  testament,  donation,  or  otherwise,  and 
their  representatives,  being  citizens  or  subjects  of 
the  other  party,  shall  succeed  to  their  said  personal 
goods,  whether  by  testament  or  ab  intestate,  and  may 
take  possession  thereof,  either  by  themselves,  or  by 
others  acting  for  them,  and  dispose  of  the  same,  at 
will,  paying  to  the  profit  of  the  respective  Govern- 
ments, such  dues  only  as  the  inhabitants  of  the 
country  wherein  the  said  goods  are,  shall  be  subject 
to  pay  in  like  cases.  And  in  case  of  the  absence  of 
the  representatives,  such  care  shall  be  taken  of  the 


40  TESTAMENTARY   FORMS 

said  goods,  as  would  be  taken  of  the  goods  of  a 
native  of  the  same  country,  in  like  case,  until  the 
lawful  owner  may  take  measures  for  receiving  them. 
And  if  a  question  should  arise  among  several  claim- 
ants, as  to  which  of  them  said  goods  belong,  the 
same  shall  be  decided  finally  by  the  laws  and  judges 
of  the  land  wherein  the  said  goods  are.  And  where, 
on  the  death  of  any  person  holding  real  estate, 
within  the  territories  of  one  of  the  high  contracting 
parties,  such  real  estate  would  by  the  laws  of  the 
land,  descend  on  a  citizen  or  subject  of  the  other 
party,  who  by  reason  of  alienage  may  be  incapable 
of  holding  it,  he  shall  be  allowed  the  tune  fixed  by 
the  laws  of  the  country,  and  in  case  the  laws  of  the 
country,  actually  in  force  may  not  have  fixed  any 
such  tune,  he  shall  then  be  allowed  a  reasonable 
tune  to  sell  such  real  estate  and  to  withdraw  and 
export  the  proceeds  without  molestation,  and  with- 
out paying  to  the  profit  of  the  respective  Govern- 
ments, any  other  dues  than  those  to  which  the 
inhabitants  of  the  country  wherein  said  real  estate 
is  situated,  shall  be  subject  to  pay,  hi  like  cases. 
But  this  Article  shall  not  derogate,  hi  any  manner, 
from  the  force  of  the  laws  already  published,  or 
which  may  hereafter  be  published  by  His  Majesty 
the  Emperor  of  all  the  Russias  to  prevent  the 
emigration  of  his  subjects. 


EFFECT  OF  WILL  IN  OTHER  JURISDICTIONS     41 

SAXONY 
(German  Empire) 

By  the  Treaty  of  1845  it  is  provided  as  follows: 

ARTICLE   II 

Where,  on  the  death  of  any  person  holding  real 
property  within  the  territories  of  one  party,  such 
real  property  would,  by  the  laws  of  the  land,  de- 
scend on  a  citizen  or  subject  of  the  other,  were  he 
not  disqualified  by  alienage,  —  or  where  such  real 
property  has  been  devised  by  last  will  and  testa- 
ment to  such  citizen  or  subject,  he  shall  be  allowed 
a  term  of  two  years  from  the  death  of  such  person, 
which  term  may  be  reasonably  prolonged  according 
to  circumstances,  —  to  sell  the  same  and  to  with- 
draw the  proceeds  thereof  without  molestation,  and 
exempt  from  all  duties  of  detraction  on  the  part  of 
the  Government  of  the  respective  states. 

ARTICLE   III 

The  citizens  or  subjects  of  each  of  the  contracting 
parties  shall  have  power  to  dispose  of  their  personal 
property  within  the  states  of  the  other,  by  testa- 
ment, donation  or  otherwise,  and  then*  heirs,  being 
citizens  or  subjects  of  the  other  contracting  party, 
shall  succeed  to  their  said  personal  property,  whether 
by  testament,  or  ab  intestate,  and  may  take  pos- 
session thereof,  either  by  themselves  or  by  others 
acting  for  them,  and  dispose  of  the  same  at  their 


42  TESTAMENTARY   FORMS 

pleasure,  paying  such  duties  only  as  the  inhabitants 
of  the  country,  where  the  said  property  lies,  shall 
be  liable  to  pay  in  like  cases. 

Articles  IV  and  V  are  almost  identical  with  the 
same  articles  in  the  case  of  Bavaria. 


SERVIA 
By  the  Treaty  of  1881  it  is  provided  as  follows: 

ARTICLE    II 

In  all  that  concerns  the  right  of  acquiring,  or 
possessing  or  disposing  of  every  kind  of  property, 
real  or  personal,  citizens  of  the  United  States  hi 
Serbia  and  Serbian  subjects  in  the  United  States, 
shall  enjoy  the  rights  which  the  respective  laws  grant 
or  shall  grant  in  each  of  these  States  to  the  subjects 
of  the  most  favored  nation. 

Within  these  limits,  and  under  the  same  conditions 
as  the  subjects  of  the  most  favored  nation,  they  shall 
be  at  liberty  to  acquire  and  dispose  of  such  prop- 
erty, whether  by  purchase,  sale,  donation,  exchange, 
marriage  contract,  testament,  inheritance,  or  in  any 
other  manner  whatever,  without  being  subject  to 
any  taxes,  imposts,  or  charges  whatever  other  or 
higher  than  those  which  are  or  shall  be  levied  on 
natives  or  on  the  subjects  of  the  most  favored 
State. 

They  shall  likewise  be  at  liberty  to  export  freely 
the  proceeds  of  the  sale  of  their  property,  and  their 
goods  in  general,  without  being  subjected  to  pay 


EFFECT   OF  WILL   IN   OTHER  JURISDICTIONS       43 

any  other  or  higher  duties  than  those  payable  under 
similar  circumstances  by  natives  or  by  subjects  of 
the  most  favored  State. 


SPAIN 
By  the  Treaty  of  1902  it  is  provided  as  follows: 

ARTICLE   III 

Where,  on  the  death  of  any  person  holding  real 
property  (or  property  not  personal),  within  the 
territories  of  one  of  the  contracting  parties,  such  real 
property  would,  by  the  laws  of  the  land,  pass  to  a 
citizen  or  subject  of  the  other,  were  he  not  dis- 
qualified by  the  laws  of  the  country  where  such 
real  property  is  situated,  such  citizen  or  subject  shall 
be  allowed  a  term  of  three  years  in  which  to  sell  the 
same,  this  term  to  be  reasonably  prolonged  if  cir- 
cumstances render  it  necessary,  and  to  withdraw 
the  proceeds  thereof,  without  restraint  or  interfer- 
ence, and  exempt  from  any  succession,  probate  or 
administrative  duties  or  charges  other  than  those 
which  may  be  imposed  in  like  cases  upon  the  citizens 
or  subjects  of  the  country  from  which  such  proceeds 
may  be  drawn. 

The  citizens  or  subjects  of  each  of  the  contracting 
parties  shall  have  full  power  to  dispose  of  their 
personal  property  within  the  territories  of  the  other, 
by  testament,  donation,  or  otherwise;  and  their 
heirs,  legatees,  and  donees,  being  citizens  or  sub- 
jects of  the  other  contracting  party,  whether  resi- 


44  TESTAMENTARY   FORMS 

/ 

dent  or  non-resident,  shall  succeed  to  their  said 
personal  property,  and  may  take  possession  thereof 
either  by  themselves  or  by  others  acting  for  them, 
and  dispose  of  the  same  at  their  pleasure,  paying 
such  duties  only  as  the  citizens  or  subjects  of  the 
country  where  the  property  lies,  shall  be  liable  to 
pay  in  like  cases. 

In  the  event  that  the  United  States  should  grant 
to  the  citizens  or  subjects  of  a  Third  Power  the  right 
to  possess  and  preserve  real  estate  in  all  the  States, 
territories  and  dominions  of  the  Union,  Spanish 
subjects  shall  enjoy  the  same  rights;  and,  in  that 
case  only,  reciprocally,  the  citizens  of  the  United 
States  shall  enjoy  the  same  rights  in  Spanish 
Dominions. 

SWEDEN  AND  NORWAY 
By  the  Treaty  of  1783  it  is  provided  as  follows: 

ARTICLE    VI 

The  subjects  of  the  contracting  parties  in  the 
respective  States  may  freely  dispose  of  their  goods 
and  effects,  either  by  testament,  donation,  or  other- 
wise in  favour  of  such  persons  as  they  think  proper; 
and  their  heirs,  in  whatever  place  they  shall  reside, 
shall  receive  the  succession  even  ab  intestate,  either 
in  person  or  by  their  attorney,  without  having  oc- 
casion to  take  out  letters  of  naturalization.  These 
inheritances,  as  well  as  the  capitals  and  effects  which 
the  subjects  of  the  two  parties,  in  changing  their 


EFFECT   OF   WILL   IN   OTHER  JURISDICTIONS       45 

dwelling,  shall  be  desirous  of  removing  from  the 
place  of  their  abode,  shall  be  exempted  from  all  duty, 
called  "  droit  de  detraction  "  on  the  part  of  the  govern- 
ment of  the  two  States,  respectively.  But  it  is  at 
the  same  time  agreed  that  nothing  contained  in  this 
article  shall  in  any  manner  derogate  from  the 
ordinances  published  in  Sweden  against  emigrations 
or  which  may  hereafter  be  published,  which  shall 
remain  in  full  force  and  vigor.  The  United  States 
on  their  part  or  any  of  them,  shall  be  at  liberty  to 
make,  respecting  this  matter,  such  laws  as  they 
think  proper. 

SWITZERLAND 

By  the  Treaty  of  1850  it  is  provided  as  follows: 
ARTICLE  v 

The  citizens  of  each  one  of  the  contracting  parties 
shall  have  power  to  dispose  of  their  personal  prop- 
erty, within  the  jurisdiction  of  the  other,  by  sale, 
testament,  donation  or  in  any  other  manner;  and 
their  heirs,  whether  by  testament  or  db  intestato,  or 
their  successors,  being  citizens  of  the  other  party, 
shall  succeed  to  the  said  property  or  inherit  it,  and 
they  may  take  possession  thereof,  either  by  them- 
selves or  by  others  acting  for  them;  they  may  dis- 
pose of  the  same  as  they  may  think  proper,  paying 
no  other  charges  than  those  to  which  the  inhabitants 
of  the  country  wherein  the  said  property  is  situated 
shall  be  liable  to  pay  in  a  similar  case.  In  the  absence 


46  TESTAMENTARY   FORMS 

of  such  heir,  heirs,  or  other  successors,  the  same  care 
shall  be  taken  by  the  authorities  for  the  preservation 
of  the  property,  that  would  be  taken  for  the  preser- 
vation of  the  property  of  a  native  of  the  same 
country,  until  the  lawful  proprietor  shall  have  had 
time  to  take  measures  for  possessing  himself  of  the 
same. 

The  foregoing  provisions  shall  be  applicable  to 
real  estate  situated  within  the  States  of  the  Ameri- 
can Union,  or  within  the  Cantons  of  the  Swiss  Con- 
federation, in  which  foreigners  shall  be  entitled  to 
hold  or  inherit  real  estate. 

But  in  case  real  estate,  situated  within  the  terri- 
tories of  one  of  the  contracting  parties,  should  fall 
to  a  citizen  of  the  other  party,  who,  on  account  of 
his  being  an  alien,  could  not  be  permitted  to  hold 
such  property  in  the  State  or  in  the  Canton  in  which 
it  may  be  situated,  there  shall  be  accorded  to  the 
said  heir  or  other  successor  such  term  as  the  laws 
of  State  or  Canton  will  permit  to  sell  such  property; 
he  shall  be  at  liberty  at  all  times  to  withdraw  and 
export  the  proceeds  thereof  without  difficulty  and 
without  paying  to  the  Government  any  other  charges 
than  those  in  a  similar  case  would  be  paid  by  an 
inhabitant  of  the  country  in  which  the  real  estate 
may  be  situated. 

i 

ARTICLE   VI 

Any  controversy  that  may  arise  among  the 
claimants  to  the  same  succession,  as  to  whom  the 


EFFECT   OF   WILL   IN   OTHER  JURISDICTIONS       47 

property  shall  belong,  shall  be  decided  according 
to  the  laws  and  by  the  judges  of  the  country  in 
which  the  property  is  situated. 

WtJRTTEMBERG 

(German  Empire) 

Articles  II  to  IV  inclusive  of  the  Treaty  of  1844 
are  identical  with  the  same  articles  hi  the  case  of 
Bavaria.  Article  VI  is  as  follows: 

All  the  stipulations  of  the  present  convention 
shall  be  obligatory  hi  respect  to  property  already 
inherited  or  bequeathed,  but  not  yet  withdrawn  from 
the  country  where  the  same  is  situated  at  the  signa- 
ture of  this  convention. 


CHAPTER  III 

WHO  MAY  MAKE  A  WILL 

EVERY  person  of  required  age  and  sound  mind 
may  make  a  will.  This  required  age  depends  upon 
Statutes,  which  must  be  strictly  followed.  In  some 
jurisdictions  very  young  people  may  make  a  will, 
and  in  others  no  one  under  twenty-one  is  allowed  to 
execute  the  document. 

The  attorney  should  be  vigilant  and  cautious  as 
to  all  matters  relative  to  fraud,  undue  influence, 
mistake,  and  soundness  of  mind.  On  presenting 
for  probate  a  will,  properly  executed  and  attested, 
the  questions  which  naturally  arise  are,  "  Was  the 
testator  at  the  time  of  execution  of  sound  mind  ? 
Was  the  instrument  executed  under  fraud  or  undue 
influence  ?  Did  the  testator  execute  the  will  under- 
standingly,  or,  in  other  words,  was  there  no  mis- 
take?" In  Whitney  v.  Twombly,  136  Mass.  145, 
146,  the  Judge's  charge  to  the  jury  was  adopted  by 
the  Court  as  accurate  and  sufficient,  and,  as  it  may 
apply  in  most  jurisdictions,  it  is  given  entire. 

"Soundness  of  mind,  such  as  will  enable  a  person, 
under  the  statute,  to  make  a  will,  has  relation  to  the 
business  to  be  transacted,  namely,  the  disposition 
of  her  property  by  will.  Her  mind  must  have  been 

48 


WHO    MAY  MAKE   A   WILL  49 

sound  with  reference  to  whatever  is  involved  in  this 
transaction;  that  is  to  say,  she  must  have  been  able 
to  understand,  and  carry  in  her  mind,  in  a  general 
way,  the  nature  and  situation  of  her  property,  and 
her  relations  to  those  persons  who  are  about  her;  to 
those  who  would  naturally  have  some  claim  to  her 
remembrance;  to  those  persons  in  whom,  and  those 
things  in  which,  she  has  been  mostly  interested. 
She  must  have  been  capable  of  understanding  these 
things,  and  the  nature  of  the  act  she  was  doing,  and 
the  relation  in  which  she  stood  to  the  objects  of  her 
bounty,  and  to  those  who  ought  to  be  in  her  mind 
on  such  an  occasion,  and  free  from  any  delusion 
which  was  the  effect  of  disease,  and  which  would 
or  might  lead  her  to  dispose  of  her  property  other- 
wise than  she  would  have  done  if  she  had  known 
and  understood  correctly  what  she  was  doing.  All 
the  testimony,  covering  the  whole  later  portion  of 
her  life,  —  as  to  her  relations  and  degree  of  intimacy 
with  her  brothers  and  sisters  and  nephews  and 
nieces;  as  to  what  she  said  and  what  she  did;  as  to 
her  peculiarities,  if  you  find  that  she  had  any;  as 
to  her  disposition  and  temperament,  her  griefs  and 
bereavements,  her  attacks  of  sickness,  whatever  you 
may  find  them  to  have  been,  her  habits  and  manners; 
as  to  what  you  may  find  that  she  was  not  able  to  do, 
and  what  she  was  able  to  do,  —  may  be  considered 
so  far  as  they  will  aid  you  in  determining  her  condi- 
tion of  mind  on  January  2,  1877.  Age  is  not  of  itself 
a  disqualification,  but  it  excites  vigilance  to  see  if  it 
is  accompanied  with  incapacity.  Disease  is  not  itself 


50  TESTAMENTARY   FORMS 

a  disqualification,  but  all  infirmities  awaken  caution 
to  see  if  mental  capacity  is  impaired  or  gone." 

It  is  not  proposed  to  enlarge  upon  this  subject  in 
a  book  of  this  nature,  but  the  following  quotation 
from  Remsen  on  Wills,  p.  379,  presents  an  excellent 
summary : 

"The  questions  raised  on  the  issue  of  testator's 
mental  capacity  frequently  involve  the  considera- 
tion of  one  or  more  of  the  following:  idiocy,  lunacy, 
lucid  intervals,  monomania,  delusions,  hallucina- 
tions, eccentricity,  impairment  of  memory,  use  of 
drugs  or  liquors,  delirium,  epileptic  fits,  old  age, 
feebleness,  blindness,  inability  to  hear,  speak,  or 
express  ideas,  religious  beliefs,  superstition,  moral 
depravity,  and  the  like." 

In  the  majority  of  cases  where  an  attorney  is 
called  upon  to  draw  a  will,  he  is  acquainted  with  the 
testator  and  knows  whether  he  has  sufficient  testa- 
mentary capacity  and  is  free  from  undue  influence. 
In  the  minority  of  cases  he  should  be  extremely 
cautious,  and  the  circumstances  are  likely  to  be 
such  as  to  determine  whether  it  is  prudent  or  not  to 
draw  the  instrument. 

Aliens  may  nearly  everywhere  transmit  their  per- 
sonal property.  2  Kent  Com.  62,  63.  In  many 
jurisdictions  they  are  authorized  by  statute  to 
transmit  their  real  estate.  But  privileges  conferred 
upon  aliens  by  State  authority  are  strictly  local;  and 
until  a  foreigner  is  duly  naturalized,  according  to 


WHO   MAY   MAKE   A   WILL  51 

the  act  of  Congress,  he  is  not  entitled  in  any  other 
State  to  any  other  privileges  than  those  which  the 
laws  of  that  State  allow  to  aliens.  2  Kent  Com. 
70,  71. 

A  single  man  may  generally  in  all  jurisdictions 
dispose  of  his  property  by  will  without  restraint, 
the  only  -objection  being  that  which  heirs  or  next  of 
kin  may  offer  to  the  probate  of  the  will  on  the  grounds 
of  undue  influence  or  mental  incapacity. 

A  married  man  may  dispose  of  his  property  by 
will.  But  there  are  generally  restraints  as  to  children 
and  the  issue  of  a  deceased  child,  and  as  to  his  wife. 

I.    As  to  Children  and  the  Issue  of  a  Deceased  Child. 

The  rule  prevalent  hi  many  places  is  that  if  the 
testator  omits  to  provide  in  his  will  for  any  of  his 
children  or  for  the  issue  of  a  deceased  child,  they 
shall  take  the  same  share  of  his  estate  which  they 
would  have  taken  if  he  had  died  intestate,  unless 
provided  for  by  the  testator  in  his  lifetime  or  unless 
the  omission  was  intentional  and  not  occasioned  by 
accident  or  mistake. 

Safety,  therefore,  demands  that  a  testator  should 
in  explicit  language  express  his  intention  as  to  all  his 
living  children  and  the  issue  of  any  deceased  child. 
This  may  be  done  by  giving  the  child  or  issue  of  a 
deceased  child  a  legacy  of  only  a  nominal  amount. 
But  this  is  not  always  necessary.  It  is  sufficient  in 
many  jurisdictions  if  it  appear  by  the  will  that  the 
testator  had  not  forgotten  the  child. 

The  following  are  offered  as  forms: 


52  TESTAMENTARY    FORMS 

Mention  of  Children  and  Issue  of  Deceased  Children. 

I  give  to  my  only  living  children  A.  B.  and  C.  D. 
and  to  my  grandson  E.  F.,  the  only  child  of  my  de- 
ceased son,  G.  H.  the  sum  of  five  dollars  each. 

I  give  to  my  only  living  children  A.  B.  and  C.  D., 
the  sum  of  five  dollars  each  and  make  no  further 
provision  for  them  in  this  will  as  I  am  confident 
that  their  mother  will  provide  for  their  support  and 
education. 

I  give  my  son  A.  B.  the  sum  of  five  dollars,  and  I 
make  no  further  provision  for  him  in  this  will,  as  the 
money  which  I  have  already  given  him  and  expended 
for  him  is  equivalent  to  the  share  of  my  estate  which 
he  would  inherit  if  I  should  die  intestate. 

I  mention  the  names  of  my  only  children  A.  B., 
C.  D.  and  E.  F.  to  show  that  I  have  not  forgotten 
them  and  I  purposely  give  them  no  legacies  in  this 
will. 

I  purposely  exclude  from  any  interest  in  my 
estate  under  this  will  my  daughter  A.  B.,  and  my 
sons,  C.  D.  and  E.  F.  and  also  any  other  child  or 
children  that  may  be  born  to  me  before  or  after  my 
decease. 

I  purposely  exclude  from  any  interest  in  my  estate 
my  only  living  child  A.  B.  and  C.  D.,  the  only  living 
child  of  my  deceased  son  E.  F. 


WHO   MAY  MAKE   A   WILL  53 

Another  form  may  be  found  on  p.  499. 
Sometimes  testators  insert  a  provision  like  one  of 
the  following: 

After-born  Children. 

I  declare  and  direct  that  any  child  or  children 
hereafter  born  to  me  shall  share  in  my  estate  equally 
with  the  children  named  as  legatees  in  this  will. 

I  declare  and  direct  that  any  child  or  children 
hereafter  born  to  me  shall  share  in  my  estate  equally 
with  the  children  named  as  legatees  in  this  will; 
that  is  to  say,  having  given  the  residuum  of  my 
estate  to  my  five  children  to  be  equally  divided 
among  them,  I  now  declare  and  direct  that  any 
child  or  children  born  to  me  after  the  execution  of 
this  will  shall  share  in  said  residuum  equally  with 
said  five  children. 

Frequently  a  testator  inserts  a  statement  giving  a 
reason  for  a  distinction  or  difference  in  the  treat- 
ment of  children  or  grandchildren. 

Inequalities  in  the  Treatment  of  Children  and 
Grandchildren. 

The  inequalities  in  this  will  between  the  devises 
and  legacies  to  my  daughter  A.  B.  and  my  sons, 
C.  D.,  and  E.  F.,  are  not  due  to  differences  in  the 
affection  and  esteem  I  entertain  for  them,  but  to 
the  fact  that  my  daughter  is  so  situated  by  mar- 
riage that  she  does  not  need  the  income  required  by 


54  TESTAMENTARY   FORMS 

my  sons  for  the  support  of  their  families.  I  trust 
that  she  will  appreciate  the  distinction  and  be  en- 
tirely satisfied  with  the  provisions  made  for  her. 

I  make  no  provision  in  this  will  for  my  son,  A.  B., 
because  I  have  already  given  him  property  equal  to 
the  amount  he  would  take  by  inheritance,  if  I  left 
no  will. 

The  distinction  in  this  will  shown  by  my  giving 
my  daughter,  A.  B.,  just  double  the  amount  which 
I  give  my  son,  C.  D.,  is  not  due  to  any  difference  of 
affection,  but  to  the  fact  that  I  have  already  ex- 
pended a  great  deal  of  money  in  my  son's  behalf, 
but  have  done  nothing  for  my  daughter  beyond  the 
ordinary  expenditures  of  a  father  for  education  and 
support. 

The  reason  for  giving  my  grandchildren  A.  B. 
and  C.  D.  less  than  I  have  given  my  other  grand- 
children is  due  to  the  fact  that  I  did  for  their  father 
E.  F.  during  his  life  far  more  than  for  any  one  of  my 
other  children. 

Other  forms  may  be  found  on  pp.  505,  562,  569. 

II.    As  to  Wife. 

The  provisions  as  to  ante-nuptial  contracts  or 
marriage  settlements  are  largely  statutory  and  cover 
a  very  wide  field.  To  draw  a  will  intelligently  the 
attorney  should  consult  an  ante-nuptial  contract, 


WHO   MAY   MAKE   A   WILL  55 

if  the  testator  has  entered  into  one.  Reference  has 
been  made  to  trust  deeds,  ante,  p.  1.  As  to  ante- 
nuptial contracts  see  p.  121. 

In  several  States,  like  Arizona,  California,  Loui- 
siana, New  Mexico,  Texas,  and  Washington  there 
is  a  law  as  to  community  property  which  applies  to 
that  owned  by  the  husband  and  wife.  See  2  Under- 
bill on  Wills,  §  750;  Remsen  on  Wills,  64.  The 
statutes  and  decisions  of  the  jurisdiction  must,  of 
course,  be  followed. 

The  following  are  taken  from  wills  probated  in 
California: 

All  the  property,  real,  personal  and  mixed,  of 
which  I  may  die  possessed,  is  the  common  property 
of  my  wife  and  myself,  the  same  having  been  ac- 
quired since  our  marriage,  and  upon  my  death,  she 
surviving,  she  is  entitled,  in  addition  to  the  devises 
herein  contained,  to  the  undivided  one-half  of  all 
thereof. 

I  hereby  declare  that  all  of  my  property  and  estate 
has  been  acquired  since  my  marriage  with  my  be- 
loved wife,  A.  B.  and  is  community  property  of  my- 
self and  my  said  wife. 

In  many  jurisdictions  a  husband  or  wife  has  rights 
in  the  estate  of  the  other  after  death,  which  the  sur- 
vivor may  elect  to  take  despite  the  terms  of  a  will. 
In  some  States  both  husband  and  wife  may  directly 
waive  the  provisions  of  the  other's  will.  But  such 


56  TESTAMENTARY   FORMS 

waiver  often  works  confusion  among  the  other  pro- 
visions of  the  will,  especially  if  the  estate  is  devised 
and  bequeathed  hi  any  way  out  of  the  ordinary. 
The  rights  referred  to  are  those  of  a  wife  to  dower, 
of  a  husband  to  curtesy,  and,  frequently  also  hi  the 
case  of  a  wife,  a  distributive  interest,  such  as  thirds, 
allowances,  rights  of  succession,  and  widow's  award. 
These  rights  pertain  more  to  the  wife  than  to  the 
husband,  and,  if  there  is  in  the  will  no  well-worded 
provision  for  the  wife  in  lieu  of  them,  she  may 
in  many  places  recover  something  in  addition  to 
what  has  been  given  her  by  the  will.  The  com- 
mon course  is  to  put  a  clear  provision  hi  the  will, 
and  it  is  also  advisable  generally  to  give  the  wife  as 
large  an  interest  in  her  husband's  estate  as  she 
would  be  entitled  to  by  law,  if  there  were  no  will. 
The  following  forms,  largely  taken  from  duly  proved 
wills,  may  be  of  some  help  to  the  practitioner: 

In  Lieu  of  Dower  and  Widow1  s  Rights. 

I  make  this  provision  for  my  wife  in  lieu  of  dower 
and  widow's  rights  under  the  laws  of  this  State. 

I  give  my  wife  one-third  of  all  my  real  and 
personal  estate  in  lieu  of  dower  and  rights  of 
succession. 

The  provision  made  in  this  will  for  my  wife  is  in 
lieu  of  dower,  thirds  and  any  other  interest  she  may 
have  in  my  estate,  if  I  left  no  will. 


WHO   MAY   MAKE   A   WILL  57 

The  provision  made  herein  for  my  wife  is  in  lieu 
of  all  her  statutory  or  other  rights  or  claims  of  any 
kind  to  my  estate  or  any  part  thereof. 

The  bequests  and  devises  herein  made  to  my  said 
wife  are  intended,  and  are  hereby  declared,  to  be  in 
lieu  of  dower  and  all  other  interest  she  may  have  hi 
and  to  my  estate. 

The  provisions  of  this  will  for  my  wife  are  in- 
tended to  be  in  lieu  of  dower,  widow's  award,  and 
all  other  provisions  for  the  widow  made  by  the  laws 
of  this  State  or  of  the  several  States  where  any  of  my 
estate  real  or  personal,  may  be  situated. 

The  provisions  for  my  wife  hi  this  will  are  hi  lieu 
of  dower  and  of  all  and  any  claims  and  demands  of 
any  kind  that  she  may  or  can  have  against  my 
estate. 

The  provisions  for  my  wife  in  this  will  are  in  lieu 
of  her  dower  and  in  bar  of  her  distributive  share  of 
my  estate,  her  year's  allowance  and  all  other  rights 
given  her  by  statute  or  otherwise  in  my  real  and 
personal  estate. 

The  following  is  from  a  New  York  will: 

The  provisions  herein  for  my  wife  are  in  lieu  and 
bar  of  any  claim  of  dower  or  other  interest  on  her 
part  in  my  estate,  and  of  any  and  all  moneys  which 


58  TESTAMENTARY   FORMS 

shall  or  may  come  to  her  upon  any  insurance  policy 
or  policies  on  my  life,  all  of  which  insurance  moneys 
I  direct  that  she  shall  turn  into  my  estate,  and  the 
same  shall  be  deemed  part  thereof. 

Forms  similar  to  the  above  may  be  found  on  pp. 
512,  576,  593. 

A  married  woman  may  dispose  of  her  property 
by  will. 

The  disabilities  imposed  by  the  law  of  coverture 
upon  married  women  have  been  largely  removed, 
and  hi  many  States  the  married  woman  is  as  free 
as  her  husband  to  dispose  of  her  property  by  will. 
It  is  well,  however,  carefully  to  examine  the  statutes 
and  decisions  of  the  jurisdiction,  as  the  old  rule  that 
she  may  dispose  of  property  settled  upon  her  to  her 
sole  and  separate  use,  but  not  her  general  estate, 
may  in  a  few  cases  obtain.  There  are  also  statutes 
in  many  places  which  forbid  the  cutting  off  of  the 
husband  without  his  consent.  Attention  is  called 
to  the  remarks  just  preceding  as  to  the  rights  of  a 
married  man  to  make  a  will,  as  most  of  the  obliga- 
tions are  likewise  imposed  upon  a  married  woman. 


CHAPTER  IV 

WHAT  PROPERTY  MAY  OR  MAY  NOT  BE  BEQUEATHED 
OR  DEVISED 

I.    After-acquired  Property. 

A  simple  bequest  of  all  a  man's  personal  estate 
operates  as  well  upon  that  acquired  after,  as  upon 
that  held  at,  the  date  of  the  will.  "  Should  a  man 
bequeath  all  his  estate  in  the  public  funds,  all  his 
bank  and  insurance  stock,  or  all  his  farming  stock 
and  utensils,  it  would  embrace  all  held  at  the  time 
of  his  decease,  whether  held  at  the  date  of  his  will 
or  acquired  afterwards.  But  if  it  were,  all  shares 
which  I  now  own  in  such  a  bank,  or  all  cattle  and 
horses  now  on  my  farm,  it  would  describe  specific 
shares  and  particular  cattle  and  horses,  and  could 
not  extend  to  others."  Wait  v.  Belding,  24  Pick. 
129,  136.  See  Kimball  v.  Ellison,  128  Mass.  41; 
Briggs  v.  Briggs,  69  Iowa,  617. 

The  same  rule  now  applies  to  real  property,  as 
statutes  pretty  generally  provide  that  an  estate, 
right,  or  interest  in  land  acquired  by  a  testator  after 
the  making  of  his  will  shall  pass  thereby  in  like 
manner  as  if  possessed  by  him  at  the  time  when  he 
made  his  will,  unless  a  different  intention  mani- 
festly and  clearly  appears  by  the  will.  See  Hill  v. 
Bacon,  106  Mass.  578;  Doe  v.  Wynne,  23  Miss.  251. 

59 


60  TESTAMENTARY   FORMS 

The  next  question  is  the  language  necessary  to 
express  the  intention  to  pass  after-acquired  real 
estate.  It  is  probable  that  general  words  are  suffi- 
cient without  specific  reference  to  after-acquired 
realty.  While  a  residuary  clause  as  commonly 
drawn  may  be  all  that  is  necessary,  yet  testators 
frequently  specifically  mention  this  species  of 
property. 

A  form  may  be  found  on  p.  565. 

II.  Contingent  Remainders,  Executory  Devises,  etc.,  Vested 
Interests. 

These  interests  in  most  States  pass  by  will. 

"The  executory  interests  which  are  not  trans- 
missible are  only  those  which  are  limited  to  a  person 
not  in  being  or  not  yet  ascertained,  or  to  a  person 
when  he  shall  sustain  a  particular  character,  arrive 
at  a  given  age,  or  fulfil  a  certain  condition."  Hem- 
sen  on  Wills,  178.  In  many  jurisdictions  there  are 
now  statutes  which  provide  that  if  a  contingent  re- 
mainder, executory  devise,  or  other  estate  hi  ex- 
pectancy is  so  granted  or  limited  to  a  person  that 
in  case  of  his  death  before  the  happening  of  the  con- 
tingency the  estate  would  descend  to  his  heirs  hi 
fee  simple,  he  may,  before  the  happening  of  the  con- 
tingency, sell,  assign,  or  devise  the  land  subject  to 
the  contingency.  In  such  jurisdictions  all  contingent, 
like  vested,  interests  are  descendible,  transmissible, 
and  assignable. 

All  vested  interests,  of  course,  pass  by  will,  but 
as  to  a  vested  remainder  in  real  estate  it  is  Important 


BEQUEATHABLE   OR   DEVISABLE    PROPERTY         61 

to  note  that  an  actual  corporeal  seizin,  or  a  right  to 
such  seizin,  in  the  husband  during  the  coverture  is 
indispensable  to  entitle  his  widow  to  dower.  Hence 
if  it  is  the  testator's  intention  to  give  his  wife  an 
interest  in  such  remainder  equivalent  to  dower,  he 
should  express  that  intention  in  his  will.  Wilmarth 
v.  Bridges,  113  Mass.  407.  The  same  rule  applies  to 
curtesy.  Webster  v.  Ellsworth,  147  Mass.  602. 

III.  Devising  or  Bequeathing  Property  which  the  Testator 
does  not  Own. 

This  is  the  doctrine  of  election.  In  many  cases  it 
may  be  advisable  for  an  attorney  to  call  the  attention 
of  the  testator  to  this  doctrine. 

"The  doctrine  of  election  as  applied  to  the  law  of 
wills  simply  means  that  he  who  takes  under  a  will 
must  conform  to  all  its  provisions."  2  Underbill  on 
Wills,  §  726. 

"If  the  testator  should  devise  an  estate  belonging 
to  his  son,  or  heir  at  law,  to  a  third  person,  and  should 
in  the  same  will  bequeath  to  his  son,  or  heir  at  law, 
a  legacy  of  one  hundred  thousand  dollars,  etc.,  an 
implied  or  constructive  election  is  raised.  The  son 
or  heir  must  relinquish  his  own  estate  or  the  bequest 
under  the  will."  Wilbanks  v.  Wilbanks,  18  111.  17,  21. 
See  Brown  v.  Brown,  42  Minn.  270;  Whiting's  Appeal, 
67  Conn.  379,  389 ;  Gorham  v.  Dodge,  122  111.  528, 535 ; 
Hyde  v.  Baldwin,  17  Pick.  303,  308.  As  to  election 
in  case  of  a  bequest  of  the  proceeds  of  an  insurance 
policy,  see  2  Underhill  on  Wills,  §  752. 

This  doctrine  of  election  often  arises  where  a 


62  TESTAMENTARY   FORMS 

husband  or  wife  is  dissatisfied  with  the  provision 
made  in  the  other's  will  and  elects  to  waive  the  will 
and  take  under  statutory  provisions. 

It  seems  that  if  "a  testator  has  money  or  other 
property  in  his  hands  belonging  to  others,  whether 
in  trust  or  otherwise,  and  it  has  no  ear-mark,  and  is 
not  distinguishable  from  the  mass  of  his  own  prop- 
erty," he  can  virtually  bequeath  it,  because  it  falls 
within  the  description  of  assets,  and  the  party  must 
come  in  as  a  general  creditor.  Johnson  v.  Ames,  11 
Pick.  172,  181;  Bank  of  Troy  v.  Stanton,  116  Mass. 
435,  439.  See  also  O'Brien  v.  New  England  Trust 
Co.,  183  Mass.  186. 

All  trust  funds  in  a  testator's  possession  should  be 
kept  separate  from  his  own  estate,  so  that  upon  his 
decease  his  executor  can  pass  them  over  to  a  new 
trustee. 

Often  a  testator  has  in  his  possession  the  property 
of  others,  which  he  holds  for  convenience  and  where 
no  trust  deed  or  other  instrument  has  been  signed. 
Forms  like  the  following  may  be  inserted  in  his  will: 

Property  of  Others  in  Testator's  Possession. 

Whereas  A.  B.  of  etc.  placed  in  my  possession  and 
custody  on  the  9th  day  of  April,  1909,  the  following 
described  bonds  [full  description  including  numbers] 
to  hold  in  a  fiduciary  capacity,  the  same  to  be  re- 
turned to  the  said  A.  B.  on  the  happening  of  a  certain 
event  or  upon  my  death,  now,  therefore,  if  said 
bonds  or  any  of  them  are  in  my  possession  and  cus- 


BEQUEATHABLE   OR   DEVISABLE    PROPERTY         63 

tody  at  the  time  of  my  decease,  I  direct  my  said 
executor  to  turn  over  the  same  to  the  said  A.  B.  or 
his  legal  representative,  taking  a  sufficient  receipt 
therefor,  and  I  hereby  particularly  disclaim  any 
interest  in  and  title  to  said  bonds  and  declare  them 
to  be  the  absolute  property  of  said  A.  B. 

I  have  long  had  in  my  possession  the  separate 
estate  of  my  wife,  which  amounts  to  about  ninety 
thousand  dollars  and  is  invested  in  the  following 
described  securities  [full  description].  I  hereby  ac- 
knowledge and  confirm  my  wife's  right  and  title  to 
all  the  above  described  property;  and,  as  it  is  prob- 
able that  with  my  wife's  consent,  I  may  dispose  of 
some  of  the  above  securities  and  reinvest  the  pro- 
ceeds in  other  property,  I  direct  my  executor  to 
turn  over  and  transfer  to  my  said  wife  all  the  above 
securities  or  those  subsequently  purchased  as  for 
the  amount  of  her  separate  estate  in  my  hands  and 
possession. 

IV.    Trust  Deeds   and  Declarations  of  Trust. 

Reference  has  already  been  made  to  these  methods 
of  transferring  property.  See  p.  1.  If  the  law  of  the 
jurisdiction  does  not  permit  such  conveyances,  or  if 
they  are  inartificially  drawn  so  that  there  is  no  com- 
pleted gift,  the  property  is  regarded  as  assets  of  the 
testator's  estate.  Similar  cases  frequently  arise  when 
one  deposits  his  own  money  in  a  savings  bank  in  his 
own  name,  as  trustee  for  another,  in  order  to  evade 
the  provisions  of  law  and  the  by-laws  of  the  corpora- 


64  TESTAMENTARY   FORMS 

tion  which  limit  the  amount  of  deposits  from  any 
one  person. 

The  attorney  should  ascertain  from  the  testator 
whether  he  has  entered  into  any  trusts  such  as  those 
alluded  to. 

It  is  generally  said  that  the  creation  of  a  trust  to 
take  the  place  of  a  will  is  advisable  only  in  rare 
cases.  However,  it  often  happens  that  a  testator 
desires  to  recognize  the  service  of  an  individual  with- 
out proclaiming  it  in  the  form  of  a  legacy,  and  without 
the  knowledge  of  any  one  except  the  trustee  or  trus- 
tees and  the  remainderman.  This  may  be  done  by 
a  trust  deed  providing  for  the  investment  of  the 
principal  only  in  unregistered  (and  preferably  non- 
taxable)  bonds,  the  payment  to  the  settlor  of  the 
proceeds  of  the  coupons  for  life  and  for  the  termina- 
tion of  the  trust  upon  his  death  by  the  delivery  of 
the  bonds,  discharged  of  all  trust,  to  the  remainder- 
man. Of  course  upon  the  termination  of  the  trust 
there  may  be  something  due  to  the  State  in  jurisdic- 
tions where  inheritances  are  taxed.  Such  trust  deeds 
should  be  resorted  to  to  subserve  only  a  proper 
purpose.  They  should  be  carefully  and  not  clumsily 
drawn.  It  is  suggested  that  the  executors  of  the  will 
be  not  named  as  trustees. 

The  following  form  is  offered: 

Declaration  of  Trust. 

This  is  to  certify  that  I,  A.  B.,  of  etc.,  have  this 
day  transferred  and  delivered  to  C.  D.  of  etc.,  Ten 
First  Mortgage  5  per  cent.  Tax  exempt  Gold  Bonds 


BEQUEATHABLE    OR   DEVISABLE    PROPERTY         65 

of  the  Western  &  Eastern  Co.,  each  of  the  denomina- 
tion of  One  Thousand  Dollars,  the  same  to  be  held 
by  the  said  C.  D.,  or  his  successors,  in  trust  upon 
the  following  terms  and  conditions.  He  or  his  suc- 
cessor in  trust  is  to  cut  off  the  coupons  of  said  bonds 
when  due,  cash  them  and  pay  over  the  proceeds  to 
me  less  ten  per  cent  thereof  for  services.  I  do  not 
apprehend  that  the  value  of  said  bonds  will  be  im- 
paired during  the  thirty  years  which  are  to  elapse 
before  the  date  fixed  for  their  redemption,  but  if  for 
any  reason  it  is  deemed  best  to  dispose  of  said  bonds, 
I  authorize  and  empower  the  said  C.  D.  or  his  suc- 
cessor in  trust,  to  sell  them  and  invest  the  proceeds 
in  other  tax  exempt  bonds  suitable  for  trustees  to 
invest  in.  Neither  the  original  nor  substituted 
bonds  are  to  be  registered,  as  I  desire  only  invest- 
ments to  be  made  which  are  capable  of  manual  de- 
livery. Upon  my  death  the  trust  is  to  cease  and  the 
bonds,  or  in  other  words  the  entire  principal  consti- 
tuting this  trust,  are  to  be  delivered  by  the  said  C.  D. 
or  his  successor  to  E.  F.,  discharged  of  all  trust. 
C.  D.  will  sign  his  name  to  an  acceptance  of  this 
trust.  If  he  dies  before  me  or  for  any  reason  feels 
obliged  to  resign  as  trustee,  then  I  name  G.  H.  as 
his  successor  as  trustee  and  confer  upon  him  all  the 
powers  conferred  above  upon  C.  D.  In  such  event 
G.  H.  will  sign  his  name  to  an  acceptance  of  this 
trust.  And  it  is  understood  that  both  C.  D.  and 
G.  H.  are  to  take  their  authority  from  this  docu- 
ment and  are  not  to  apply  to  any  probate  or  other 
court  to  be  appointed  trustees. 


66  TESTAMENTARY   FORMS 

If  the  said  E.  F.  should  die  before  me  then  this 
trust  is  to  terminate  at  once  and  the  said  C.  D.  or  his 
successor  G.  H.  is  to  return  and  deliver  to  me  the 
bonds,  that  is  the  entire  principal  of  the  trust,  dis- 
charged of  all  trust. 

I  desire  to  make  clear  to  C.  D.  and  G.  H.  that  my 
purpose  in  creating  this  trust  is  to  bestow  a  bene- 
faction privately  and  I  hope  that  the  method  adopted 
may  never  be  disclosed. 

Witness  my  hand  and  seal  this  day  of 

A.  D.  1910. 

A.  B.  [L.  S.] 

I,  C.  D.,  hereby  accept  the  above  trust  and  stipu- 
late faithfully  to  carry  out  the  provisions  thereof. 

C.  D. 

[Date.] 

V.  Gifts  Mortis  Causa. 

Much  of  the  law  on  this  subject  is,  perhaps,  un- 
fortunate; but  in  a  few  words  an  attorney  may 
acquaint  his  client  with  the.  trouble  likely  to  arise 
from  this  species  of  gift  of  personal  property,  if  all 
the  prerequisites  are  not  complied  with.  It  may  be 
the  duty  of  an  executor  to  test  the  validity  of  the 
gift;  hence  the  probability  of  legal  expenses  should 
be  presented  to  the  testator. 

VI.  Good-will. 

In  regard  to  bequeathing  the  good-will  of  a  busi- 
ness, the  following  points  are  important: 


BEQUEATHABLE    OR   DEVISABLE    PROPERTY         67 

"If  a  man  establishes  a  business  and  makes  it 
valuable  by  his  skill  and  attention,  the  good- will  of 
that  business  is  recognized  by  the  law  as  property." 
Peabody  v.  Norfolk,  98  Mass.  452,  457. 

In  England  the  "good- will"  is  held  to  be  a  valu- 
able and  tangible  thing  in  connection  with  the  busi- 
ness itself.  Wedderburn  v.  Wedderburn,  22  Beav. 
84,  104;  Blake  v.  Shaw,  Johns.  Ch.  732. 

The  bequest  of  the  good-will  of  a  business  of  a 
partnership,  of  which  the  testator  was  a  member,  is 
a  matter  easy  of  adjustment  when  the  business  is 
sold  and  a  part  of  the  purchase  money  is  attributable 
to  the  good-will.  Smith  v.  Everett,  27  Beav.  446. 
But  not  where  the  executors  have  assigned  the  testa- 
tor's interest  to  the  surviving  partner.  Robertson  v. 
Quiddington,  28  Beav.  529,  535. 

It  has  been  held  that  a  man  has  a  property  in  a 
trade  secret,  "which  a  court  of  chancery  will  protect 
against  one  who,  in  violation  of  contract  and  breach 
of  confidence,  undertakes  to  apply  it  to  his  own  use, 
or  to  disclose  it  to  third  persons."  And  if  the  testa- 
tor dies  while  the  suit  is  pending,  his  executors  suc- 
ceed to  his  rights.  Peabody  v.  Norfolk,  98  Mass. 
452,  458,  461. 

Whether  a  bequest  of  a  testator's  interest  in  a 
business  or  in  the  good-will  of  a  business  passes,  — 
capital,  undrawn  profits,  stock  in  trade,  etc.,  —  seems 
to  depend  to  some  extent  on  the  nature  of  the  busi- 
ness and  on  the  other  provisions  of  the  will.  Ap- 
parently it  would  not  pass  a  debt  due  to  the  testator 
from  the  partnership.  But  it  will  pass  a  share  in  the 


68  TESTAMENTARY   FORMS 

business  which  the  testator  has  contracted  to  pur- 
chase.   2  Jarman  on  Wills,  1311. 
For  form,  see  p.  502. 

VII.    Powers  of  Appointment. 

Powers  of  appointment  are  common,  especially  hi 
the  case  of  trust  estates. 

For  safety  a  power  of  appointment  should  be 
exercised  conformably  to  the  provisions  of  the  instru- 
ment creating  it.  If  the  power  to  appoint  is  limited 
to  a  particular  class  or  certain  persons,  children,  rela- 
tives, etc.,  the  power  should  be  strictly  exercised. 
Austin  v.  Oakes,  117  N.  Y.  577;  Faloon  v.  Flannery, 
74  Minn.  38. 

If  the  domicile  of  the  person  upon  whom  the  power 
is  conferred  is  not  that  of  the  testator  creating  the 
power,  care  should  be  taken  to  exercise  the  power 
so  that  no  conflict  of  jurisdiction  may  arise.  See 
Sewall  v.  Wilmer,  132  Mass.  131;  Cotting  v.  De 
Sartiges,  17  R.  I.  668. 

In  many  States  there  are  statutory  provisions  as 
to  the  execution  of  powers  of  appointment,  and  these 
should  be  examined  and  literally  followed.  See 
Remsen  on  Wills,  297,  298. 

The  common-law  rule  that  a  devise  or  bequest  of 
all  of  a  testator's  property,  without  reference  to  the 
power  of  appointment,  is  not  a  sufficient  execution 
thereof  has  been  changed  by  decisions  as  well  as 
by  statutes  in  many  jurisdictions.  Perhaps  nearly 
everywhere  a  general  devise  and  bequest  of  all  the 
testator's  estate  by  a  residuary  clause  or  otherwise 


BEQUEATHABLE   OR   DEVISABLE   PROPERTY          69 

is  a  sufficient  execution.  See  Amory  v.  Meredith, 
7  Allen,  397.  However,  reference  to  the  power  is 
always  advisable.  A  widow  had  a  life  estate  with  a 
contingent  power  to  revoke  the  testator's  devise  over 
of  the  remainder,  in  case  the  devisees  or  any  of  them 
"  should  not  be  obedient  to  her  during  her  natural 
life."  She  failed  to  exercise  the  power  by  any  affirm- 
ative decision  or  declaration.  It  was  held  that  no 
interest  passed  by  a  gift  in  her  own  will  of  all  the 
rest  and  residue  of  her  estate.  Garman  v.  Glass,  197 
Pa.  St.  101. 

If  real  estate  subject  to  a  power  of  appointment  is 
located  iri  a  State  where  the  words  "heirs"  is  neces- 
sary to  confer  a  fee,  it  is  advisable  to  execute  the 
power  to  the  person  entitled  and  to  his  heirs  and 
assigns  forever. 

If  the  power  is  conferred  upon  a  married  woman, 
there  may  be  statutory  or  other  restraints  as  to  its 
execution. 

Sometimes  it  is  provided  that  the  will  upon  which 
the  power  is  conferred  shall  be  drawn  and  executed 
according  to  the  laws  of  the  jurisdiction  of  the  donor 
of  the  power. 

It  is  well  to  remember  that  in  many  jurisdictions 
the  execution  of  the  power  makes  the  property  ap- 
pointed part  of  the  testator's  assets,  and  "subject 
to  the  demands  of  his  creditors  in  preference  to 
the  claims  of  his  voluntary  appointees  or  legatees." 
Clapp  v.  Ingraham,  126  Mass.  200,  202. 

The  following  are  offered  as  forms : 


70  TESTAMENTARY    FORMS 

Appointment  by  Life  Tenant  of  Income  for  Use  of 
his  Widow. 

Whereas  by  the  sixteenth  article  of  his  last  will  and 
testament,  dated,  etc.,  and  proved,  etc.,  my  father 
A.  B.  created  a  trust  of  One  Hundred  Thousand 
Dollars,  giving  me  the  net  income  thereof  for  life, 
and  provided  that  upon  my  decease  the  trust  should 
terminate  and  the  principal  should  go  as  therein 
ordered,  unless  I  should  direct  by  my  own  last  will 
and  testament  that  the  trust  should  continue  and  the 
net  income  thereof  be  paid  to  my  present  wife, 
during  her  widowhood,  now,  in  execution  of  the  above 
power  of  appointment,  I  direct  and  hereby  notify 
the  trustees  under  my  said  father's  will  that  said 
trust  shall  continue  during  the  widowhood  of  my 
present  wife  and  upon  her  ceasing  to  be  my  widow 
or  upon  her  decease,  she  not  having  married,  the 
provisions  of  my  said  father's  will  as  to  the  termina- 
tion of  the  trust  are  to  take  effect. 

Appointment  by  Beneficiary  of  Principal  of  Trust. 

Whereas  by  his  last  will  dated,  etc.,  and  proved, 
etc.,  A.  B.  created  a  trust  for  my  benefit  and  provided 
that  upon  its  termination  by  my  death  the  capital 
should  go  to  such  person  or  persons  as,  by  my  last 
will,  made  conformably  to  the  laws  of  the  State  of 
,  I  might  direct  and  appoint,  now,  there- 
fore, I  give,  devise  and  bequeath  the  capital  of  said 
trust  to  my  daughter  C.  D.  to  have  and  to  hold  to 
her  heirs  and  assigns  forever. 


BEQUEATHABLE    OR   DEVISABLE    PROPERTY         71 

Appointment  by  Beneficiary  of  Sum  or  its  Equivalent 
in  Possession  of  Trust  Company. 

I  direct  my  said  executor  to  receive  from  the  Equity 
Trust  Company  of,  etc.,  the  sum  of  Five  Thousand 
Dollars  and  all  interest  and  accumulations  thereon, 
or  the  real  estate,  stocks,  notes,  bonds  and  mortgages, 
in  lieu  of  said  sum  with  interest  and  accumulations, 
which  by  the  terms  of  a  contract  in  writing  between 
said  Company  and  A.  B.,  trustee,  executed  the  first 
day  of  November  one  thousand  eight  hundred  and 
ninety-eight,  the  said  Company  agreed  to  assign, 
transfer  and  pay  over  to  my  executors  or  adminis- 
trators in  sixty  days  after  proof  of  my  decease;  and 
out  of  the  money  or  other  property  so  received  from 
said  Company,  I  direct  my  said  executor  to  keep 
for  his  own  use,  the  sum  of  Five  Hundred  Dollars; 
and  to  assign,  transfer,  and  pay  over  all  the  remainder 
of  the  money,  or  other  property  received  from  said 
Company,  after  deducting  said  sum  for  his  own  use, 
to  my  children  and  the  issue  of  any  deceased  child 
or  children  by  right  of  representation  in  equal 
shares. 

Appointment  by  Beneficiary  of  Principal  of  Trust 
Fund. 

Whereas  by  the  tenth  clause  of  the  last  will  of  etc., 
which  will  is  dated,  etc.,  and  was  duly  proved,  etc., 
One  Hundred  Thousand  Dollars  was  given  to  trus- 
tees to  pay  the  net  income  thereof  to  me  during  my 
life,  and  it  was  further  provided  that  the  trust  was 


72  TESTAMENTARY   FORMS 

to  terminate  upon  my  decease  and  that  the  entire 
principal  thereof,  discharged  of  all  trust,  was  to  go 
in  the  manner  and  method  that  I  might  point  out 
and  indicate  in  and  by  any  will  or  other  instrument 
under  my  hand  and  seal  existing  at  the  time  of  my 
decease,  now,  therefore,  I  give  and  bequeath  said 
principal  sum,  whether  the  same  be  One  Hundred 
Thousand  Dollars  more  or  less  to  A.  B.,  to  be  hers 
absolutely. 

Appointment  by  Beneficiary  of  Principal  of  Trust 
Fund. 

Under  the  ninth  clause  of  my  father's  will,  dated 
etc.,  and  duly  proved,  etc.,  One  Million  Dollars  was 
given  in  trust,  one  fourth  of  the  net  income  thereof 
to  be  paid  to  me  during  my  life  and  upon  my  death 
the  trust  to  terminate  as  to  one  fourth  of  the  princi- 
pal, and  the  same  to  go,  discharged  of  all  trust,  to 
any  person  or  persons,  corporation  or  corporations, 
societies  or  associations  that  I  might  name  and  ap- 
point in  and  by  my  last  will  and  testament.  Exer- 
cising the  power  thus  given  by  my  father's  will,  I 
give  and  bequeath  one  half  of  said  one  fourth  of  said 
principal,  be  said  principal  One  million  dollars,  more 
or  less,  to  my  wife  [name]  and  the  other  half  thereof 
to  my  children  A.  B.,  C.  D.,  E.  F.,  and  G.  H.  to  be 
equally  divided  among  them,  the  issue  of  a  deceased 
child  to  take  its  parent's  share,  per  stirpes  and  not 
per  capita. 


BEQUEATHABLE   OR  DEVISABLE   PROPERTY         73 

Refusal  to  Execute  Power. 

Whereas  by  the  third  article  of  his  last  will  and 
testament,  dated,  etc.,  and  duly  proved,  etc.,  my 
father  A.  B.  gave  the  residue  and  remainder  of  his 
estate  in  trust  and  provided  that  the  trustees  should 
pay  me  the  net  income  thereof  for  life  and  that  at 
my  decease  said  residue  and  remainder  should  be 
equally  divided,  discharged  of  all  trust,  among  my 
children  living  at  the  time  of  my  decease,  the  issue 
of  a  deceased  child  to  take  the  parent's  share  by 
right  of  representation;  and  whereas  my  said  father 
further  provided  by  said  will  that  if  I  was  dissatisfied 
with  said  proposed  division,  the  said  residue  and 
remainder  should  go,  discharged  of  all  trust,  as  I 
might  by  my  last  will  and  testament  name,  declare 
and  appoint,  now,  therefore,  I  declare  myself  en- 
tirely satisfied  with  the  aforesaid  provisions  of  my 
said  father's  will,  and  desire  and  direct  that  the 
provisions  thereof  shall  hi  all  respects  be  complied 
with  and  carried  into  effect;  and  I  decline  to  exer- 
cise the  power  of  appointment  therein  conferred 
upon  me. 

Appointment  by  Residuary  Clause. 

All  the  rest,  residue  and  remainder  of  my  property, 
both  real  and  personal,  of  which  I  shall  die  seized 
and  possessed  or  to  which  I  shall  be  entitled  at  the 
tune  of  my  decease,  including  any  property  over 
which  I  shall  possess  any  power  of  appointment  by 
will,  I  give,  devise  and  bequeath  to,  etc. 


74  TESTAMENTARY   FORMS 

Appointment  Limited  to  Descendants,  etc. 

Whereas  by  the  last  will  of  A.  B.,  dated,  etc.,  and 
proved,  etc.,  the  rest,  residue  and  remainder  of  his 
estate  was  given  in  trust  to  pay  the  net  income 
thereof  to  me  for  life,  and  it  was  further  provided  that 
upon  my  decease  the  trust  was  to  terminate  and 
said  rest,  residue  and  remainder  was  to  go,  dis- 
charged of  all  trust,  to  and  among  such  of  my 
descendants  and  in  such  shares  or  portions  as  I 
might  by  my  last  will  and  testament  direct,  deter- 
mine and  appoint,  now,  therefore,  in  conformity 
therewith  and  in  execution  of  said  power  of  appoint- 
ment, I  give,  devise  and  bequeath  said  rest,  residue 
and  remainder  to  my  son,  C.  D.,  and  my  grand- 
daughter E.  F.,  the  only  surviving  child  of  my 
daughter  G.  H.,  to  be  equally  divided  between 
them,  to  have  and  to  hold  to  their  respective  heirs 
and  assigns  forever. 

Appointment  by  Beneficiary  of  Principal  of  Trust 
Created  by  him. 

Having  executed  an  instrument  of  trust  dated, 
etc.,  whereby  I  conveyed  all  my  estate,  consisting 
of  personal  property,  to  A.  B.  as  trustee  to  pay  me 
the  net  income  thereof  during  life,  and,  upon  my 
decease,  to  convey  the  same,  discharged  of  all  trust, 
"to  such  person  or  persons  as  I  shall  in  my  writing 
under  my  hand  and  seal  name  and  appoint  to 
receive  the  same,  and  in  default  of  such  appoint- 
ment to  my  next  of  kin,"  now,  I  hereby  execute 


BEQUEATHABLE    OE   DEVISABLE    PROPERTY         75 

said  power  of  appointment  and  hereby  give  and 
bequeath  all  the  above  estate  to  C.  D.  of  etc. 

Appointment  by  Life  Tenant  of  Vested  Remainder. 

Whereas  by  the  will  of  A.  B.,  dated,  etc.,  and 
proved  etc.,  I  was  given  a  life  interest  in  the  follow- 
ing described  real  estate  [description]  and  it  was 
further  provided  in  said  will  that  the  fee  in  said 
above  described  real  estate  should  go  and  descend 
upon  my  decease  to  any  person  or  persons  I  might 
name  and  appoint  in  and  by  any  will  or  other  instru- 
ment under  seal  duly  executed  by  me  according  to 
law,  now,  therefore,  I  give,  devise  and  bequeath  said 
above  described  real  estate  to  C.  D.,  to  have  and  to 
hold  to  him  and  his  heirs  and  assigns  forever. 

Appointment  in  Case  of  Limited  Power. 

Whereas  by  the  last  will  of  A.  B.  dated,  etc.,  and 
proved,  etc.,  I  was  given  for  life  the  rents  and  profits 
of  the  following  described  real  estate  [description] 
and  it  was  further  provided  in  said  will  that  the  fee 
in  said  above  described  real  estate  should  go  and 
descend  upon  my  decease  to  such  of  my  two  nephews 
and  three  nieces,  the  children  of  my  brother  C.  D., 
and  in  such  shares  or  proportions  as  I  might  order, 
direct  and  appoint  in  and  by  my  last  will  and  testa- 
ment duly  executed  by  me  according  to  law,  now, 
therefore,  in  execution  of  said  power,  I  give,  devise 
and  bequeath  said  above  described  real  estate  to 
my  nephews  E.  F.,  and  G.  H.,  and  my  nieces  I.  J. 


76  TESTAMENTARY   FORMS 

and  K.  L.,  as  tenants  in  common  to  have  and  to 
hold  to  them  and  their  respective  heirs  and  assigns 
forever.  I  exclude  my  niece  M.  N.  from  any  share 
in  the  estate  at  her  own  request  as  she  feels  that  she 
is  amply  provided  for  in  pecuniary  matters. 

Another  form  is  given  on  p.  575. 

Many  years  ago  a  testator  gave  the  rest,  residue, 
and  remainder  of  a  large  estate  to  a  son  for  life,  with 
authority  to  appoint  the  same  after  his  death.  This 
was  done  in  a  will  of  elaborate  provisions.  Copies 
of  both  wills  may  be  found  in  Remsen  on  Wills, 
432  et  seq.  and  450  et  seq.  See  also  pages  485,  540. 

VIII.    Rights  as  Fellow  or  Patron. 

Often  a  testator  desires  to  bequeath  his  interest 
as  fellow  or  patron  of  some  institution  or  museum. 
Forms  like  the  following  are  suggested: 

I  give  and  bequeath  to  A.  B.  all  my  right,  title 
and  interest  as  Fellow  in  Perpetuity  of  the  Phidian 
Museum  in  the  city  of  San  Francisco,  and  constitute 
him  my  successor  therein. 

I  give  and  bequeath  to  my  son  C.  D.  all  my 
right,  title  and  interest  in  and  to  the  Humanitarian 
Institution  in  the  city  of  New  York,  as  patron  or 
fellow,  including  all  powers  and  privileges  incident 
thereto. 


BEQUEATHABLE    OR   DEVISABLE    PROPERTY         77 

IX.  Renewals  and  Extensions  of  Copyrights. 

The  renewal  and  extension  shall  be  by  the  widow, 
widower,  or  children  of  the  author,  if  the  author  be 
not  living,  or  if  such  author,  widow,  widower,  or 
children  be  not  living,  then  by  the  author's  execu- 
tors, or  in  the  absence  of  a  will,  his  next  of  kin.  35 
U.  S.  Stat.  at  Large,  1075,  §§  23,  24. 

X.  Policies  of  Insurance. 

All  policies  of  insurance  on  the  life  of  the  testator, 
including  those  issued  by  beneficiary  associations, 
and  all  accident  policies,  should  be  carefully  ex- 
amined by  the  attorney  before  the  will  is  executed. 
If  the  proceeds  of  policies  which  fall  into  a  testator's 
estate  are  not  given  specifically  they  will,  of  course, 
pass  under  the  residuary  clause.  Fox  v.  Senter,  83 
Me.  295.  In  some  jurisdictions  statutes  declare 
that  policies  expressed  to  be  for  the  benefit  of  the 
widow  and  child  of  the  assured  or  of  some  other 
person  than  the  assured  shall  not  pass  to  his  executor 
or  administrator.  And  this  would  probably  be  the 
law  without  such  statute.  In  the  Matter  of  Smith, 
46  Misc.  (N.  Y.)  210,  215,  it  appeared  that  the 
testator  in  his  will  recited  his  assets,  consisting 
almost  entirely  of  life  and  accident  insurance,  and 
the  court  said,  "The  proceeds  of  such  insurance 
are  as  much  the  subject  of  testamentary  disposition 
as  the  proceeds  of  regular  life  insurance  made  pay- 
able to  the  estate." 


78  TESTAMENTARY   FORMS 

XI.    Personal  Chattels  in  the  Nature  of  Heirlooms. 

While  there  is  considerable  law  on  this  subject  in 
England  there  is  little  or  none  hi  this  country.  If  a 
testator  desires  that  some  personal  chattel  or  article 
of  domestic  value  shall  remain  in  the  family  for  a 
considerable  period,  or  shall  be  enjoyed  in  succession 
by  friends  or  relatives,  the  best  method  is  to  attach 
to  the  bequest  a  wish  or  instruction  as  hi  the  follow- 
ing forms: 

I  give  my  son  my  cane  with  the  gold  head  upon 
which  is  engraved  my  name  and  the  date,  1848,  to 
be  his  absolutely.  I  trust,  however,  that  he  will 
bequeath  the  same  to  his  oldest  son,  with  the  re- 
quest that  the  last-named  will  bequeath  it  to  his 
oldest  son  and  so  on. 

I  give  my  son,  A.  B.  my  gold  watch,  which  was 
bequeathed  to  me  by  my  father.  I  desire  my  said 
son  to  dispose  of  the  same  in  such  manner,  if  pos- 
sible, that  it  may  be  held  in  the  family  during  the 
succeeding  generation,  but  I  impose  no  restrictions 
of  any  nature. 

The  following  form,  taken  from  the  will  of  a  tes- 
tatrix domiciled  in  Rhode  Island,  is  probably  too 
elaborate  and  problematical  for  ordinary  purposes: 

I  bequeath  my  diamond  necklace  to  my  son  A.  B., 
his  executors,  administrators  and  assigns  upon 


BEQUEATHABLE    OR   DEVISABLE   PROPERTY         79 

trust  during  the  life  of  my  eldest  grand-daughter  C.  D. 
to  permit  the  same  to  be  used  and  enjoyed  by  her; 
and  from  and  after  her  death  upon  such  trusts  as 
shall  as  nearly  as  the  rules  of  law  and  equity  will 
permit,  correspond  with  limitations  of  freehold 
estate,  unaffected  by  the  statute  of  said  State  of 
Rhode  Island,  now  embodied  in  section  2  of  chapter 
182  of  its  Public  Statutes,  to  the  effect  following, 
that  is  to  say: 

To  the  use  of  the  first  and  other  daughters  of  my 
said  grand-daughter  successively,  according  to  priority 
of  birth,  in  tail  female;  with  remainder  to  like  uses 
in  favor  of  my  second  and  every  other  grand-daughter 
successively,  according  to  priority  of  birth,  for  life, 
and  their  respective  first  and  other  daughters  suc- 
cessively in  tail  female  with  remainder  to  like  uses 
in  favor  of  the  first  and  other  daughters  of  my  said 
son  respectively,  according  to  priority  of  birth,  in 
tail  female  respectively;  with  remainder  to  the  use 
of  my  own  right  heirs.  But  I  declare  that  said 
necklace  shall  be  subject  to  an  executory  limitation 
over,  on  the  death  under  the  age  of  twenty-one 
years  of  any  person  who  under  the  limitations  afore- 
said of  real  estate  unaffected  by  the  statute  afore- 
said would  be  tenant  in  tail  female  thereof  by 
purchase,  to  and  in  favor  of  the  person  who  would 
as  aforesaid  be  entitled  under  the  subsequent  limi- 
tations according  to  the  tenor  of  the  same  limita- 
tions; and  the  person  for  the  time  being  entitled  to 
said  necklace  shall  be  permitted  to  have  the  personal 
use  and  enjoyment  thereof.  And  my  said  trustee 


80  TESTAMENTARY   FORMS 

his  executors  or  administrators  or  other  the  trustee 
under  these  trusts  for  any  tune  being  may  at  any 
time,  or  from  tune  to  time,  upon  the  request  in 
writing  of  any  one  entitled  for  the  tune  being  to  the 
use  and  enjoyment  of  said  necklace,  have  the  setting 
of  the  same  altered,  but  not  to  sell  or  otherwise 
dispose  of  any  of  the  stones  comprising  the  same. 

XII.    Survival  of  Actions. 

Much  legislation  has  been  occasioned  by  con- 
tracts failing  to  make  clear  whether  a  right  of  action 
does  or  does  not  survive.  Questions  also  arise  as  to 
the  survival  of  actions  of  tort  and  of  those  which 
relate  to  real  property. 

"Without  doubt  the  general  rule  is  that,  in  the 
absence  of  express  words,  the  parties  to  a  contract 
intend  to  bind  their  personal  representatives  as  well 
as  themselves,  even  although  the  contract  may  re- 
quire years  for  its  performance,  as  in  the  case  of  an 
ordinary  promissory  note,  whether  payable  by  in- 
stalments or  otherwise,  or  in  the  case  of  an  agree- 
ment to  buy,  receive,  and  pay  for  certain  property 
at  stated  tunes  (Drummond  v.  Crane,  159  Mass.  577), 
or  to  build  a  house  or  a  ship,  or  to  guarantee  payment 
of  certain  dividends  on  stocks.  Kernochan  v.  Murray, 
111  N.  Y.  306;  Drummond  v.  Crane,  ubi  supra.  On 
the  other  hand,  a  contract  may  be  of  such  a  nature 
as  to  admit  of  only  a  personal  performance,  or  as 
to  imply  that  it  is  to  be  operative  only  during  the 
existence  of  a  certain  state  of  affairs,  although  not 
so  expressed  in  terms,  and  in  such  case  the  contract 


BEQUEATHABLE    OR   DEVISABLE    PROPERTY          81 

will  be  considered  dissolved  by  death  or  disability, 
which  makes  the  personal  performance  impossible, 
or  which  destroys  the  existence  of  such  a  state  of 
affairs.  A  familiar  illustration  of  such  a  contract 
is  an  agreement  to  paint  a  picture  or  write  a  book. 
Kernochan  v.  Murray,  111  N.  Y.  306."  Brown  v. 
Cushman,  173  Mass.  368,  370. 

It  is  advisable  for  an  attorney  to  question  the 
testator  as  to  his  outstanding  obligations,  for  in 
many  cases,  if  it  appears  that  a  right  of  action  does 
not  survive,  the  testator  may  desire  to  modify  his 
existing  contracts.  In  nearly  all  States  there  are 
statutes  providing  for  the  survival  of  certain 
actions. 

XIII.  Testator's   Body,    Monuments,    Tombstones,    Burial 
Lots,  and  Cemetery  Corporations. 

"The  right  of  a  person  to  provide  by  will  for  the 
disposition  of  his  body  has  been  generally  recog- 
nized." Pierce  v.  Proprietors,  10  R.  I.  227,  239. 
"It  would  be  a  waste  of  tune  to  cite  authorities  to 
show  that  a  person  by  will  can  determine  absolutely 
what  disposition  shall  be  made  of  his  remains." 
Scott  v.  Riley,  16  Phila.  106,  108.  Despite  the  above 
cases  there  are  decisions  to  the  contrary  and  much 
litigation  as  to  the  rights  of  possession  and  burial, 
disinterment,  damages  for  mutilation,  right  of  re- 
moval, etc.  See  75  Am.  St.  Reps.  424,  note. 

If  a  person  desires  to  leave  any  particular  direc- 
tions as  to  the  disposition  of  his  body  by  burial  or 
cremation,  it  is  best  to  put  them  in  a  paper  to  be 


82  TESTAMENTARY   FORMS 

opened  immediately  after  death  and  not  merely  in 
the  will,  as  the  will  is  generally  read  after  the  burial. 
Forms  like  the  following  may  be  used: 

Disposition  of  Testator's  Body. 

I  have  left  a  memorandum  in  writing  with  my 
executor  stating  that  I  desire  that  my  body  shall  be 
cremated.  I  now  direct  my  said  executor  or  his 
successor  in  order  to  defray  the  expenses  of  such 
cremation  to  expend  a  sum  not  to  exceed  five  hun- 
dred dollars. 

I  have  left  with  my  executors  a  written  request 
that  my  remains  be  placed  for  the  time  being  in  a 
receiving  tomb.  As  soon  as  convenient  I  direct 
that  they  be  buried  in  my  lot  [description]  in  the 
Grove  St.  Cemetery. 

In  many  States  a  burial  lot  and  a  tombstone  have 
not  been  regarded  as  properly  a  part  of  the  funeral 
expenses,  and  statutes  have  been  passed  to  the  effect 
that  a  burial  lot  and  a  tombstone  may  be  allowed  by 
the  court  as  part  of  the  funeral  expenses  of  a  tes- 
tator. The  better  way  is  to  make  provision  in  the 
will. 

There  are  liberal  statutory  provisions  in  many 
jurisdictions  as  to  cemetery  lots  and  their  care  and 
preservation,  and  an  executor  or  administrator  is 
authorized  to  pay  to  a  cemetery  corporation  or 
to  the  local  or  municipal  authorities  a  reasonable 
amount  for  the  perpetual  care  and  preservation  of 


BEQUEATHABLE   OR  DEVISABLE    PROPERTY         83 

the  testate's  or  intestate's  burial  lot.  Local  laws 
should  be  consulted  and  faithfully  followed.  "A 
testamentary  disposition  either  of  land,  or  money 
for  the  purchase  of  land,  for  the  establishment  or  the 
support  of  a  public  cemetery  in  which  all  persons, 
upon  compliance  with  the  conditions  prescribed,  shall 
have  the  right  of  interment,  is  valid  as  for  a  public 
and  charitable  purpose.  A  very  different  question 
arises,  and  one  which  is  not  altogether  easy  of 
proper  solution,  in  the  case  of  a  gift  in  perpetuity 
to  provide  for  the  purchase  of  a  burial  plot  for  the  tes- 
tator alone,  or  for  the  permanent  care  of  one  already 
owned  by  him,  or  for  the  purchase  and  care  of  a 
family  burial  plot,  or  for  the  erection  of  a  monument 
to  the  memory  of  the  testator.  The  gift  for  a  public 
cemetery  is  one  that  is  calculated  to  confer  a  benefit 
upon  the  whole  public  or  upon  a  certain  large 
though  indefinite  class  of  the  public.  Every  char- 
acteristic of  a  public  charity  is  present.  It  is  intended 
to  supply  a  public  necessity  and  to  aid  in  preserving 
the  public  health  by  furnishing  a  proper  and  con- 
venient place  of  sepulture  for  the  dead.  And  as  the 
interment  of  the  departed  with  appropriate  cere- 
monies constitutes  a  part  of  every  description  of 
religious  faith  practised  in  civilized  communities, 
and  is  one  of  the  most  prominent  religious  rites 
which  is  adhered  to  in  civilized  lands,  it  may  be 
said,  with  reason,  that  the  supplying  and  dedication 
of  public  cemeteries  and  burial  grounds  are  proper 
examples  of  religious  or  pious  uses.  But  a  gift  for 
a  private  burial  ground  for  the  exclusive  use  of  the 


84  TESTAMENTARY   FORMS 

family  of  the  testator,  or  a  provision  for  a  private 
grave  or  a  private  family  plot,  stands  upon  a  wholly 
different  footing.  The  cases  are  irreconcilably  in- 
harmonious as  to  the  legality  of  such  gifts.  The 
English  decisions,  while  admitting  the  validity  of 
bequests  in  perpetuity  for  public  cemeteries,  deny 
the  validity  of  such  gifts  for  private  burying  grounds 
or  for  private  monuments,  reasoning  that  a  trust  to 
build  a  private  monument  or  to  keep  one  in  repair 
is  not  a  trust  for  a  public  charitable  purpose,  but 
solely  for  some  private  purpose  of  the  testator. 
Hence  a  gift  of  money  in  trust  to  provide  a  tomb  for 
the  testator,  to  purchase  a  private  burial  plot  for 
him  or  for  his  family,  or  to  keep  and  maintain  his 
monument  or  his  tomb  in  good  condition,  where 
the  trust  is  to  endure  for  a  longer  period  than  is 
permitted  by  the  rule  of  perpetuities,  is  invalid. 
The  building  and  repair  of  a  private  monument  are 
matters  strictly  individual  and  personal  to  the  de- 
ceased or  to  the  surviving  members  of  his  family, 
which  in  no  way  confer  any  benefit  upon  the  public 
generally.  They  cannot  be  regarded  as  a  valid 
charitable  purpose."  2  Underbill  on  Wills,  §  823. 
The  following  are  offered  as  forms: 

Cemetery  Lots,  Monuments,  Gravestones,  etc. 

It  is  my  earnest  hope  that  my  lot  numbered  95 
and  the  tomb  thereon  in  the  Rural  Cemetery  in 
Wardville  shall  continue  to  be  the  place  of  inter- 
ment for  my  immediate  family  and  my  descendants, 
but  I  impose  no  obligation  or  trust  relative  thereto. 


BEQUEATHABLE   OR   DEVISABLE    PROPERTY         85 

I  direct  that  my  lot  numbered  104  in  the  Jackton 
Cemetery  shall  be  the  burial  place  solely  of  my  own 
remains  and  of  those  of  my  wife  and  children  and 
that  no  other  person  or  persons  shall  be  entitled  to 
interment  therein. 

I  direct  my  executors  to  erect  over  my  remains 
in  my  lot  No.  32  in  the  Evergreen  Cemetery  a  suit- 
able stone  inscribed  with  my  name  and  the  dates  of 
my  birth  and  death.  I  desire  to  state  for  the  in- 
formation of  my  executors  that  I  was  born  on  the 
ninth  day  of  August,  1847.  I  authorize  my  said 
executors  to  expend  for  the  above  grave  stone  a  sum 
not  exceeding  two  hundred  dollars. 

I  direct  my  executor  to  erect  hi  my  burial  lot 
a  suitable  monument  to  my  memory  and  expend 
therefor  a  sum  not  exceeding  five  hundred  dollars. 

I  direct  my  executor  to  place  a  suitable  tomb- 
stone at  my  grave,  not  to  exceed  two  hundred  dollars 
in  value,  and  to  pay  the  proper  board  or  municipal 
authorities  an  equal  sum,  the  net  income  of  which 
shall  be  expended  for  the  perpetual  care  and  pres- 
ervation of  my  burial  lot. 

I  direct  my  executors  to  expend  for  a  tombstone 
at  my  grave  a  sum  not  to  exceed  five  hundred 
dollars.  It  is  my  wish  that  my  lot,  No.  68,  in  Wild- 
wood  Cemetery  shall  be  the  burial  place  of  my 
children,  their  wives,  husbands  and  descendants. 


86  TESTAMENTARY   FORMS 

I  authorize  and  direct  my  said  executors  to  pay  to 
the  authorities  invested  by  law  with  power  to  re- 
ceive the  same  the  sum  of  one  thousand  dollars  for 
the  perpetual  care  and  preservation  of  said  lot  and 
I  desire  that  the  income  of  this  sum  shall  be  ex- 
pended not  merely  for  the  adornment  of  the  lot  and 
for  the  keeping  of  it  hi  orderly  condition,  but  for 
the  protection  and  repair  of  all  tombstones  and 
monuments  therein. 

I  have  deposited  a  sum  of  money  with  the  proper 
authorities  to  provide  for  the  perpetual  care  of  my 
burial  plot  and  tomb  in  Walton  Cemetery.  I  desire 
that  said  plot  shall  continue  to  be  the  place  of  in- 
terment for  my  family  and  descendants. 

I  authorize  and  empower  my  executors  to  expend 
a  sum  of  money  not  exceeding  one  thousand  dollars 
in  the  adornment  of  my  burial  lot  numbered  317  in 
Woodlawn  Cemetery;  and  I  give  the  Cemetery  Asso- 
ciation five  hundred  dollars  to  apply  the  income 
thereof  for  the  perpetual  care  and  maintenance  of 
said  lot'  and  all  monuments,  memorials  and  grave- 
stones therein.  I  give  my  brother  A.  B.  a  right  of 
interment  hi  said  lot  for  himself  and  family. 

I  give  and  bequeath  to  my  son  A.  B.  the  sum  of 
one  thousand  dollars  and  request  him  to  spend  from 
tune  to  tune  such  parts  thereof  and  the  interest 
therefrom  as  he  may  deem  advisable  in  the  preserva- 
tion and  adornment  of  my  burial  plot  in  Laketown 


BEQUEATHABLE    OR   DEVISABLE    PROPERTY         87 

Cemetery  and  the  care  of  the  graves  of  myself  and 
those  of  my  family  who  may  be  interred  therein. 
If  at  the  tune  of  his  decease  there  remains  in  his 
possession  any  part  of  the  above  bequest,  I  suggest 
that  he  leave  it  to  one  of  his  children  with  the  re- 
quest that  it  be  expended  by  him  in  a  manner  similar 
to  that  indicated  above. 

I  have  already  made  provision  for  the  perpetual 
preservation  of  my  burial  plot  numbered  98  in  the 
Oakland  Cemetery.  I  particularly  specify  and  direct 
that  the  only  persons  entitled  to  interment  therein 
are  my  wife,  myself,  my  children  and  their  husbands 
or  wives  and  their  descendants. 

In  some  of  the  forms  just  given  the  intention  of 
the  testator  as  to  the  use  of  the  burial  lot  is  stated. 
Other  similar  forms  are  as  follows: 

I  desire  that  my  lot  No.  96  in  the  Evergreen 
Cemetery  be  reserved  for  the  interment  of  my  own 
family  and  descendants. 

I  do  not  require  that  my  lot  No.  96  in  the  Ever- 
green Cemetery  shall  be  reserved  for  the  use  and 
burial  of  my  own  family,  but  my  children  may  per- 
mit the  interment  therein  of  any  of  my  or  their 
collateral  kin. 

I  direct  that  my  brother  A.  B.  and  my  sister 
C.  D.  shall  have  the  right  to  use  my  burial  lot  No. 


88  TESTAMENTARY   FORMS 

96  in  the  Evergreen  Cemetery  for  the  interment  of 
the  members  of  their  own  immediate  families. 

A  form  as  to  monument  and  burial  lot  may  be 
found  on  p.  571. 

XIV.    Residence  of  the  Testator  as  a  Home  for  the  Family. 

Testators  frequently  provide  that  the  home  shall 
be  maintained  for  the  benefit  of  the  entire  family. 
If  the  children  are  young  and  unmarried  and  the 
home  is  given  to  the  wife  and  mother,  she  will,  of 
course,  maintain  it  for  the  general  benefit,  and  it  is 
probable  that  few  embarrassments  will  arise.  To 
maintain  a  home  as  an  occasional  resort  for  the 
adult  members  of  the  testator's  family,  most  of 
whom  have  families  of  their  own,  is  a  more  difficult 
problem.  Jealousies  and  jars  are  likely  to  arise. 
The  affectionate  wishes  of  a  father  and  grandfather 
are  likely  to  be  disregarded  by  children  and  grand- 
children and  their  wives  and  husbands;  and  in  most 
cases  recourse  to  the  courts  is  not  desirable,  both  on 
account  of  publicity  and  the  improbability  of  satis- 
factory relief.  Provisions  for  an  open  house  are 
generally  found  in  the  wills  of  wealthy  testators, 
and  in  many  cases  they  are  merely  the  expression 
of  wishes  or  requests. 

Frequently  a  testator  resorts  to  a  trust  arrange- 
ment for  keeping  the  residence  open  as  a  home  for 
the  family  for  a  number  of  years.  In  one  case  a 
wealthy  testator  directed  his  executor  to  apply  such 
part  of  the  rents,  issues,  and  profits  of  the  estate  as 


BEQUEATHABLE    OR   DEVISABLE    PROPERTY         89 

he  should  deem  wise  to  defray  the  expenses  of  main- 
taining his  residence  as  a  home  for  his  daughter  and 
others  for  two  years  from  the  date  of  his  death,  at 
the  expiration  of  which  time  the  residence  was  to  be- 
come a  part  of  the  residuary  estate.  In  another  case 
a  testator  directed  that  his  homestead  be  retained 
as  a  home  for  his  family  as  long  at  least  as  one  of 
his  children  was  willing  to  occupy  it  and  keep  it  in 
good  condition  and  make  it  a  home  where  all  his 
children  might  gather  from  time  to  time.  To  this 
end  he  authorized  the  trustees  to  lease  the  home- 
stead to  such  child  as  they  might  prefer,  who 
would  agree  to  the  above  conditions,  free  of  rent, 
and  to  pay  to  such  lessee,  so  long  as  he  should 
comply  with  the  above  conditions,  a  certain  sum 
per  year  for  the  payment  of  taxes,  making  repairs, 
and  keeping  the  property  in  good  condition. 

A  testator  devised  to  his  executors  his  dwelling 
house,  lands,  buildings,  and  appurtenances  "In 
Trust,  to  maintain  the  same  as  a  homestead  and 
permanent  residence  for  my  wife  and  my  children 
during  the  life  of  my  wife  and  also  after  the  death 
of  my  wife  so  long  as  it  shall  appear  to  my  executors, 
in  view  of  the  interests  of  my  children  and  of  my 
estate,  practicable  and  desirable  to  so  maintain  the 
same."  Provision  was  further  made  as  to  insurance, 
repairs,  taxes,  and  assessments.  This  trust  was 
sustained  in  Matter  of  Stewart,  88  N.  Y.  App. 
Div.  23. 

The  following  forms  are  largely  based  upon  those 
in  actual  wills: 


90  TESTAMENTARY    FORMS 

Residence  as  a  Home  for  Family. 

I  have  given  my  wife  my  homestead  as  above  in 
the  belief  that  she  will  make  it  a  common  home  for 
all  our  children  during  their  minority. 

I  have  given  my  wife  my  homestead  as  above  hi 
the  expectation  that  it  will  be  a  common  home  for 
all  our  children  during  their  minority  or  while  they 
are  unmarried  after  reaching  majority. 

It  is  my  special  wish  that  my  said  wife  will  keep 
open  the  homestead  devised  to  her  above  for  the 
enjoyment  and  accommodation  of  all  our  children 
and  grandchildren,  who  may  desire  from  time  to 
time  to  visit  her. 

I  give  and  devise  to  my  wife,  A.  B.,  to  have  and 
to  hold  to  her  for  and  during  the  term  of  her  natural 
life  my  homestead  estate  [description].  Upon  the 
decease  of  my  said  wife,  or  if  she  shall  die  before 
me,  then  upon  my  decease,  I  give  and  devise  said 
homestead  estate  to  my  children  C.  D.,  E.  F.,  and 
G.  H.,  and  to  their  heirs  and  assigns  forever,  as 
joint  tenants  and  not  as  tenants  in  common.  It  is 
my  earnest  hope  and  request  that,  if  my  wife  shall 
survive  me,  during  such  survivorship  and  there- 
after said  homestead  estate  may,  as  long  as  is 
deemed  convenient  and  practicable,  be  used  as  a 
common  home  and  resort  for  my  said  wife  and  for 
my  said  children  and  their  families;  but  I  impose 
no  restraint,  trust  or  obligation  to  this  effect. 


BEQUEATHABLE   OR   DEVISABLE    PROPERTY         91 

I  authorize  my  trustees  in  their  discretion  to  per- 
mit my  wife  and  children  and  their  families  to  use 
and  occupy  my  city  and  country  residences. 

Other  forms  may  be  found  on  pp.  513,  556,  591. 

XV.    Real    Estate    Subject    to    Mortgage    or    Other    In- 
cumbrance. 

If  a  testator  gives  a  specific  devise  of  land  which 
is  subject  to  mortgage  or  lien,  he  should  be  informed 
that  in  most  jurisdictions  the  mortgage  or  lien  is  to 
be  discharged  out  of  his  personal  estate,  unless  he 
otherwise  directs  by  his  will.  This  rule  applies  to 
mortgages  or  hens  "created  by  the  testator  or  his 
ancestor,  and  is  not  to  be  extended  to  cases  where 
the  testator  or  ancestor  purchased  the  estate  sub- 
ject to  the  incumbrance,  unless  the  testator  or  his 
ancestor  had  rendered  himself  personally  liable 
therefor."  Hewes  v.  Dehon,  3  Gray,  205,  208.  See 
Underbill  on  Wills,  §§  384,  385.  The  rule  just  stated 
seems  to  apply  in  case  of  intestacy.  See  2  Woerner's 
Law  of  Administration  (2d  ed.),  §  494.  In  several 
States  this  rule  has  been  changed  by  statute. 

The  clearest  language  should  be  used  as  to  the 
testator's  intention,  whether  the  incumbrance  is  or 
is  not  to  be  borne  by  the  devisee.  It  is  well  to  bear 
in  mind  that  in  some  jurisdictions  other  realty  than 
that  specifically  devised  may  be  called  upon  to  con- 
tribute its  share  towards  the  payment  of  incum- 
brances,  if  the  personalty  be  insufficient  or  the 
testator  has  not  definitely  expressed  his  intention. 


92  TESTAMENTARY   FORMS 

The  following  illustration  discloses  a  peril  which 
can  be  avoided  by  a  proper  provision  in  a  will.  We 
will  suppose  that  a  man  is  possessed  of  four  hun- 
dred thousand  dollars  of  personalty  and  realty  to 
the  amount  of  eight  hundred  thousand  dollars.  He 
is  living  with  his  second  wife,  between  whom  and 
the  children  by  his  first  wife  there  is  no  friendship. 
He  desires  that  the  second  wife  shall  be  amply  pro- 
vided for,  and  he  believes  that  the  law  of  the  juris- 
diction which  gives  her  the  right  of  dower  in  the 
realty  which  is  one-third  for  life  and  one-third  of 
the  personalty  absolutely,  makes  such  provision.  He 
either  makes  no  will  or  provides  by  will  that  his  prop- 
erty shall  pass  in  the  same  way  as  if  he  had  died 
intestate.  We  will  assume  that  his  realty  has  mort- 
gages put  on  by  himself  to  the  amount  of  four  hun- 
dred thousand  dollars  and  that  they  are  his  only 
debts.  Upon  his  decease  the  four  hundred  thousand 
dollars  of  personal  property  would  be  applied  to  the 
payment  of  the  mortgages,  so  that  the  entire  estate 
would  consist  of  eight  hundred  thousand  dollars  of 
realty.  In  this  the  interest  of  the  widow  would 
only  be  a  third  for  life.  If  a  will  should  provide 
that  the  mortgages  be  not  paid  out  of  the  person- 
alty, the  widow  would  be  entitled  to  one-third  of  the 
realty  for  life,  subject  to  the  mortgages,  and  to  one- 
third  of  the  four  hundred  thousand  dollars  of  per- 
sonal property  absolutely. 

The  following  forms  are  believed  to  cover  most 
cases  which  are  likely  to  arise: 


BEQUEATHABLE    OR   DEVISABLE    PROPERTY          93 

Mortgage  to  be  Paid  out  of  Personalty  without  Re- 
course to  Realty. 

I  give  and  devise  to  A.  B.,  and  to  his  heirs  and 
assigns  forever  the  following  described  real  estate 
[description].  If  at  the  tune  of  my  decease  there 
is  any  mortgage  thereon,  I  will  and  direct  that  my 
personal  estate  remaining  after  all  my  other  debts 
have  been  paid  shall  be  applied  to  the  payment  of 
said  mortgage;  but,  if  the  personal  estate  so  remain- 
ing be  not  sufficient  for  the  purpose,  the  said  A.  B. 
shall  take  the  devise  with  so  much  of  the  burden  of 
incumbrance  as  remains  unpaid;  and  in  no  event 
shall  other  realty  be  resorted  to  to  discharge  said 
unpaid  burden  of  incumbrance. 

Mortgage  not  to  be  Paid  out  of  Personalty. 

I  give  and  devise  to  A.  B.  the  lot  of  land  situated 
in  etc.,  on  the  northeast  corner  of  Brideway  and 
Ballton  Streets,  to  have  and  to  hold  to  him  and  to 
his  heirs  and  assigns  forever.  A  more  particular 
description  of  the  premises  is  as  follows  [descrip- 
tion]. There  is  at  present  a  mortgage  on  the  above 
described  premises  given  by  me  to  the  Workwell 
Savings  Bank  for  twenty  thousand  dollars,  dated 
etc.,  recorded,  etc.,  and  payable  etc.,  with  interest 
at  the  rate  of  5  per  cent  per  annum.  If  at  the  time 
of  my  decease,  said  mortgage  or  any  part  thereof 
is  unpaid  and  undischarged,  I  will  and  direct  that 
the  said  A.  B.  shall  take  the  above  devise  subject 
to  said  mortgage  or  any  part  thereof  unpaid  and 


94  TESTAMENTARY   FORMS 

undischarged  and  shall  not  be  entitled  to  have  the 
same  paid  out  of  my  personal  estate. 

Mortgage  or  Lien,  if  any,  to  be  Paid  out  of  Per- 
sonalty. 

I  give  and  devise  my  homestead  residence  num- 
bered 92  on  Drover  Street  in,  etc.,  to  my  son  A.  B. 
to  have  and  to  hold  to  him  and  his  heirs  and  assigns 
forever.  A  correct  description  of  the  premises  is  as 
follows:  [description].  While  said  premises  are  at 
present  unincumbered,  if  at  the  time  of  my  de- 
cease there  is  any  mortgage  upon  the  same  or  they 
are  subject  to  any  lien,  I  will,  declare  and  direct 
that  said  mortgage  or  lien,  including  interest  and 
all  legal  charges,  if  any  there  be,  shall  be  paid  and 
discharged  out  of  my  personal  estate.  While  I  am 
informed  that  such  is  the  law  without  the  expression 
by  me  of  the  above  intention,  yet  I  have  made  that 
intention  manifest  so  that  my  said  son  and  the  other 
legatees  and  devisees  under  this  will  may  understand 
my  wish  and  purpose. 

Mortgages  or  Liens  not  to  be  Paid  out  of  Personalty. 

If  at  the  tune  of  my  decease  any  of  the  specific 
devises  given  by  this  will  are  subject  to  mortgages 
or  liens  of  any  kind,  I  declare  and  direct  that  the 
devisees  shall  not  be  entitled  to  have  the  mortgages 
or  liens  paid  out  of  my  personal  estate  but  shall 
take  the  devises  subject  to  such  mortgages  or 
liens. 


BEQUEATHABLE    OR   DEVISABLE    PROPERTY          95 

Mortgages  or  Liens  to  be  Paid  out  of  Personalty 
without  Recourse  to  Realty. 

I  give  and  devise  my  homestead  residence  num- 
bered 85  on  Winthrop  Street  in,  etc.,  to  my  daughter, 
A.  B.,  to  have  and  to  hold  to  her  and  her  heirs  and 
assigns  forever.  The  following  is  an  accurate  de- 
scription of  the  premises  [description].  There  is  at 
present  a  mortgage  on  the  above  described  premises 
given  by  me  to  the  Equity  Savings  Bank  for  Five 
Thousand  Dollars  dated,  etc.,  recorded  etc.,  and  pay- 
able etc.,  with  interest  at  the  rate  of  6  per  cent  per 
annum.  If  at  the  time  of  my  decease  said  mortgage 
or  any  part  thereof  is  undischarged,  I  direct  that  the 
same  be  paid  and  discharged  out  of  my  personal 
estate  remaining  after  all  my  other  debts  and  the 
pecuniary  legacies  given  by  this  will  have  been  paid 
and  discharged;  and,  if  my  personal  estate  so  remain- 
ing be  not  sufficient  for  the  purpose,  I  direct  that 
the  said  A.  B.  shall  take  the  devise  subject  to  so 
much  of  the  incumbrance  as  remains  unpaid  and 
shall  in  no  event  have  recourse  to  other  realty  to 
discharge  the  same. 

Incumbered  Property,  both  Real  and  Personal,  to 
Bear  the  Burden  of  all  Charges. 

As  to  mortgages,  charges,  liens  or  other  incum- 
brances  existing  at  my  death  on  the  devises  and 
bequests  of  real,  leasehold  and  personal  estate, 
hereinbefore  made,  it  is  my  purpose  and  I  hereby 
direct  that  every  devisee  and  legatee  shall  take  and 


96  TESTAMENTARY   FORMS 

receive  said  real,  leasehold  or  personal  estate  so 
devised  or  bequeathed,  subject  to  such  mortgages, 
charges,  liens,  or  incumbrances,  and  shall  assume  the 
payment,  performance  or  satisfaction  thereof;  and 
that  in  no  event  shall  either  my  other  real  or  per- 
sonal estate  be  resorted  to  to  pay,  perform  or  satisfy 
the  same. 

Another  form  may  be  found  on  p.  502. 

XVI.    Personal  Estate   Subject   to   Incumbrance. 

"Where  a  testator  has  pledged  property  to  secure 
a  debt  (and  I  am  not  aware  that  it  makes  any  differ- 
ence whether  he  is  personally  liable  or  not  person- 
ally liable  for  the  debt),  then  as  a  rule  (although 
there  may  be  exceptions  to  that  rule,  as  to  most 
others)  the  legatee  has  a  right  to  have  the  specific 
legacy  redeemed  out  of  the  testator's  general  per- 
sonal estate."  Bothamley  v.  Sherson,  L.  R.  20  Eq. 
304,  314.  As  to  property  specifically  "bequeathed, 
the  general  rule  is  that,  in  the  absence  of  any  ex- 
pressed intention  to  the  contrary,  such  property  is 
to  be  exonerated  and  relieved  from  all  incum- 
brances placed  upon  it  by  the  testator.  Richard- 
son v.  Hall,  124  Mass.  228.  This  rule  should  be 
applied  to  this  bequest,  and  the  administrator 
should  pay  the  debt  for  which  this  bank  stock  is 
pledged,  and  transfer  to  the  widow's  guardian  the 
stock  free  from  incumbrance."  Johnson  v.  Goss,  128 
Mass.  433,  435.  Few  cases  of  specific  bequests  al- 
ready hypothecated  are  likely  to  arise.  It  is  well, 


BEQUEATHABLE    OR   DEVISABLE    PROPERTY  97 

however,  to  call  the  attention  of  the  testator  to  the 
above  rule  in  case  he  proposes  to  give  personal  prop- 
erty specifically. 

The  question  as  to  the  legatee's  liability  for  calls 
on  subscriptions  to  stock  is  a  more  common  one.  It 
is  stated  in  Armstrong  v.  Burnet,  20  Beav.  424,  that 
where  the  interest  of  the  testator  in  the  subject 
matter  which  he  professes  to  bequeath  is  complete, 
or  where  it  is  so  treated  and  considered  by  him  and 
by  all  persons  connected  with  it,  the  future  calls 
fall  on  the  legatees  and  not  on  the  general  personal 
estate.  But  where  further  payments  are  required 
to  make  perfect  the  interest  which  the  testator  pro- 
fesses specifically  to  bequeath,  then  the  general  per- 
sonal estate  is  applicable  for  that  purpose.  See 
Addams  v.  Ferick,  26  Beav.  384. 

"A  general  bequest  of  all  the  testator's  stock  in  a 
given  railroad  company  must  be  construed  as  in- 
cluding that  which  is  only  in  part  paid  for,  as  well  as 
that  which  has  been  fully  paid  and  certified."  Emery 
v.  Wason,  107  Mass.  507,  509.  In  this  case,  where 
the  testator  died  before  the  day  when  the  remain- 
ing instalment  was  due,  it  was  held  that  the  ex- 
ecutors were  justified  in  paying  the  same,  when  it 
became  due,  from  the  general  funds  of  the  estate. 

The  following  forms  may  be  of  service  hi  excep- 
tional cases: 

Incumbrances  upon  Personal  Property. 

I  give  and  bequeath  unto  my  friend,  A.  B.,  as 
a  specific  legacy,  three  one-thousand  dollar  first- 


98  TESTAMENTARY   FORMS 

mortgage  bonds  of  the  Middleton  Central  Railroad, 
numbered  1617,  1623  and  3002  respectively;  and  if, 
at  the  time  of  my  decease,  any  one  or  more  of  said 
bonds  is  pledged  for  any  obligation  or  debt  contracted 
by  me,  the  said  A.  B.  shall  take  said  bonds  subject 
to  such  incumbrance  thereon,  and  shall  not  be  en- 
titled to  have  said  obligation  or  debt  paid  out  of  my 
personal  estate. 

I  give  and  bequeath  to  A.  B.  the  one  hundred 
shares  of  the  capital  stock  of  the  Newburgh  Manu- 
facturing Company  now  standing  in  my  name,  the 
certificate  being  numbered  804.  The  Company  hav- 
ing recently  voted  to  increase  its  capital  stock  to  an 
amount  equal  to  its  present  capital,  I  have  sub- 
scribed to  the  one  hundred  shares  extra  to  which  I 
am  entitled  and  have  paid  the  first  instalment  con- 
formably to  the  vote  of  the  Company.  If  at  the 
time  of  my  decease  I  have  not  fully  paid  the  amount 
required  to  complete  the  purchase  of  said  one  hundred 
extra  shares,  I  order  and  direct  that  the  said  A.  B. 
shall  take  this  bequest,  subject  to  the  outstanding 
and  unpaid  call,  calls,  assessment  or  assessments  and 
shall  himself  pay  the  same  in  order  to  be  entitled  to 
this  legacy. 

Another  form  is  given  on  p.  515. 

Sometimes  testators  give  directions  to  their  exec- 
utors relative  to  subscriptions  for  charitable  objects 
as  in  the  following  forms: 


BEQUEATHABLE   OR   DEVISABLE    PROPERTY          99 

Subscriptions  for  Charitable  Objects. 

It  is  my  custom  to  subscribe  amounts  of  money 
for  various  objects  of  a  religious,  charitable,  philan- 
thropic, and  educational  nature.  It  is  my  desire 
and  purpose  that  all  such  promises  shall  be  faithfully 
fulfilled;  and  I  authorize  and  direct  my  executors  to 
pay  and  discharge  from  the  funds  of  my  estate  all 
such  obligations  and  promises  existing  at  the  tune 
of  my  decease. 

If  at  the  time  of  my  decease  there  are  unpaid  sub- 
scriptions made  by  me  to  churches,  schools,  colleges, 
or  hospitals,  or  to  any  other  objects  of  a  religious, 
charitable  or  educational  nature,  I  direct  my  execu- 
tors to  pay  all  such  subscriptions,  and  also,  hi  every 
case  where  I  have  been  in  the  habit  of  assisting  by 
a  yearly  allowance  needy  people  and  students  ob- 
taining an  education,  to  pay  the  unpaid  balance  of 
such  year's  allowance. 

XVII.    Joint  Real  and  Personal  Property. 

Several  States  have  by  statute  done  away  with 
the  law  as  to  survivorship  among  joint  tenants. 
Where  the  common  law  obtains,  however,  a  devise 
or  bequest  by  a  joint  tenant  of  real  or  personal  es- 
tate is  void,  in  the  event  of  the  testator  dying  in  the 
lifetime  of  his  co-proprietor,  whose  title  by  surviv- 
orship takes  precedence  of  the  claim  of  the  devisee 
or  legatee.  1  Jarman  on  Wills,  66.  See  Wilkins  v. 
Young,  144  Ind.  1. 


100  TESTAMENTARY   FORMS 

Sometimes  a  testator  inserts  a  provision  in  his 
will  directing  his  executors  to  make  partition  among 
the  devisees  who  take  as  tenants  in  common,  or  to 
enter  into  any  partition  they  may  deem  just,  of  real 
estate  held  in  common  by  the  testator  and  others. 
Such  provisions  are  rarely  advisable.  The  following 
are  offered  as  forms: 

Provisions  as  to  Partition. 

I  authorize  and  empower  my  executors  to  make 
partition  of  my  real  estate  given  to  devisees  under 
this  will  as  tenants  in  common,  and  to  this  end  my 
said  executors  are  to  fix  the  values,  determine  the 
parcels  or  allotments,  make,  execute  and  deliver  all 
proper  deeds  or  other  instruments;  and  all  expenses 
incurred  shall  be  paid  out  of  my  estate.  Partition  in 
each  case  shall  be  agreed  upon,  by  the  entire  board  of 
executors  and  shall  be  conclusive  upon  all  devisees 
under  this  will. 

If  a  majority  of  the  persons  to  whom  any  particu- 
lar real  estate  is  devised  in  common  by  this  will  shall, 
at  any  tune  before  the  expiration  of  two  years  from 
the  proving  of  the  same,  request  my  executors  in 
writing  to  set  apart  their  shares  in  said  real  estate 
in  severalty,  said  executors  shall  proceed  so  to  do 
and  the  expenses  thereof  shall  be  charged  to  the 
devisees  in  proportion  to  their  interests  in  such  real 
estate.  Said  executors  shall  record  their  finding  or 
decree  of  partition  with  the  said  request  attached 
thereto  in  the  appropriate  registry  of  deeds. 


BEQUEATHABLE   OR   DEVISABLE    PROPERTY       101 

My  executors  are  hereby  authorized  to  enter  into 
any  partition  they  may  deem  just  of  real  estate 
held  in  common  by  me  and  others,  and  to  execute, 
deliver  and  receive  all  proper  deeds  or  other  instru- 
ments; and  the  partition  when  assented  to  and 
approved  by  said  executors  shall  be  binding  on 
all  devisees  thereof  under  this  will. 

Where  husband  and  wife  are  joint  owners  of  per- 
sonal property,  the  rule  applies  as  to  survivorship 
as  in  the  case  of  their  joint  ownership  of  real  estate 
as  tenants  by  the  entirety,  and  the  survivor  is  re- 
garded as  the  owner  and  is  not  required  to  account 
for  the  property  to  the  executor  or  administrator  of 
the  one  dying. 

XVIII.  Carrying  on  and  Adjusting  Testator's  Partnership 
and  other  Business. 

Articles  of  copartnership  frequently  contain  pro- 
visions as  to  liquidation  in  the  event  of  the  death  of 
one  of  the  partners.  If  there  are  no  provisions  it 
is  competent  for  the  representatives  of  a  deceased 
partner  "  and  the  surviving  partners  to  adjust  and 
settle  by  agreement  between  themselves  the  part- 
nership affairs  without  an  accounting  or  resort  to 
legal  proceedings.  Such  a  settlement,  hi  the  absence 
of  fraud,  would  be  binding  upon  the  parties  to  it, 
subject  to  be  opened  for  the  correction  of  errors  or 
mistakes,  in  accordance  with  the  practice  and  prin- 
ciples of  courts  of  equity."  Sage  v.  Woodin,  66  N.  Y. 
578,  581.  "If  an  executor  engages  in  business,  either 


102  TESTAMENTARY   FORMS 

as  a  sole  trader  or  in  a  partnership,  with  the  testa- 
tor's assets,  though  he  does  it  as  executor,  and  not 
for  his  individual  benefit,  he  will  be  personally  liable 
for  the  debts  incurred  in  the  business,  and  this 
although  he  does  so  in  compliance  with  directions 
in  the  testator's  will,  or  in  conformity  with  articles 
of  partnership  to  which  the  testator  was  a  party 
which  provide,  as  articles  of  partnership  sometimes 
provide,  that  on  the  death  of  a  partner  his  executor 
or  personal  representatives  shall  be  admitted  into 
the  firm."  Wild  v.  Davenport,  48  N.  J.  Law,  129, 
136.  See  Lucas  v.  Williams,  3  Giff.  150.  But  if  the 
executor  is  empowered  by  the  will  to  carry  on  the 
business,  he  may  indemnify  himself  for  the  payment 
of  debts  out  of  the  property  lawfully  embarked  in 
the  trade.  Laible  v.  Ferry,  32  N.  J.  Eq.  791.  "An 
executor  cannot  subject  the  estate  in  his  hands  for 
administration  to  some  new  liability,  either  by  his 
contract,  or  by  his  wrongful  act."  Matter  of  Van 
Slooten  v.  Dodge,  145  N.  Y.  327,  332.  "The  estate 
cannot  be  held  liable  for  a  tort  committed  by  an 
administrator  or  executor."  Sterrett  v.  Barker,  119 
Cal.  492,  494.  It  may  be  well  to  insert  a  clause  re- 
leasing the  executor  from  all  liability  or  mdemnify- 
ing  hun  for  any  losses  personally  sustained. 

One  way  is  to  authorize  the  executor  to  carry  on 
the  business,  provided  all  parties  interested  under 
the  will  give  their  consent.  See  Poole  v.  Munday, 

103  Mass.  74.    And  even  then  it  seems  advisable  to 
authorize  its  being  carried  on  only  so  far  as  is  neces- 
sary to  complete  the  testator's  contracts  and  prose- 


BEQUEATHABLE    OR   DEVISABLE    PROPERTY       103 

cute  his  undertakings.  3  Williams  on  Executors, 
1794  et  seq.  See  Murphy  v.  Walker,  131  Mass.  341. 
A  will  containing  directions  as  to  carrying  on  the 
testator's  business  may  be  found  in  Bacon  v.  Pomeroy, 
104  Mass.  577,  580. 

"A  power,  simpliciter,  to  carry  on  the  testator's 
trade,  or  to  continue  his  business  in  a  firm  of  which 
he  was  a  partner,  without  anything  more,  will  be 
construed  as  an  authority  simply  to  carry  on  the 
trade  or  business  with  the  fund  already  invested  in 
it  at  the  time  of  the  testator's  death,  and  to  subject 
that  fund  only  to  the  hazards  of  the  trade  and  not 
the  general  assets  of  the  estate."  Willis  v.  Sharp,  113 
N.  Y.  586,  590. 

"In  the  recent  case  of  Smith  v.  Ayres  (101  U.  S. 
320),  the  legal  principle  lying  at  the  foundation  of 
the  first  of  these  grounds  of  relief  was  fully  discussed 
and  determined.  It  was  there  held  that  a  testator 
might  authorize  the  continuance  of  a  partnership, 
in  which  he  was  engaged  at  the  tune  of  his  death, 
without  subjecting  any  more  of  his  property  to  the 
vicissitudes  of  the  business  than  what  was  then  em- 
barked in  it,  and  that,  unless  he  had  expressly  placed 
the  whole,  or  some  other  part  of  his  estate,  under  the 
operation  of  the  partnership,  it  would  not  be  pre- 
sumed that  he  had  so  intended.  See  also  Burwell  v. 
Mandeville's  Executor,  2  How.  560;  Ex  parte  Gar- 
land, 10  Ves.  Jr.  109.  In  the  case  before  us  the  tes- 
tator declares,  in  express  terms,  that  his  capital  and 
interest  in  said  concern  shall  be  continued  therein, 
and  shall  be  chargeable  for  its  debts  and  liabilities; 


104  TESTAMENTARY   FORMS 

but  his  other  property  shall  not  be  so  chargeable." 
Jones  v.  Walker,  103  U.  S.  444,  445.  It  has  been 
held  that  a  stipulation  in  partnership  articles,  that 
in  case  of  the  death  of  either  partner  the  survivor 
might  carry  on  the  business  for  a  year,  for  the  mutual 
benefit  of  both  partners,  did  not,  in  the  case  of  the 
death  of  one  of  them,  justify  the  allowance  against 
his  insolvent  estate  of  a  debt  contracted  by  the  sur- 
vivor within  the  year,  with  one  who  had  notice  of 
the  death.  Stanwood  v.  Owen,  14  Gray,  195. 

If  it  is  deemed  advisable  to  give  executors  power 
to  carry  on  the  testator's  business,  the  authority 
should  be  full,  but  limited  to  as  brief  a  period  as  is 
consistent  with  settling  the  estate  and  more  partic- 
ularly adjusting  special  interests.  It  is  apparent 
that  it  would  be  folly  to  give  executors  and  trustees 
unlimited  powers. 

It  frequently  happens  that  a  partnership  is  of  such 
a  nature  that  it  is  desirable  to  continue  it  after  the 
decease  of  one  of  the  partners,  without  any  conflict 
between  the  survivors  and  the  executor  of  the  de- 
ceased partner  as  to  the  price  to  be  paid  by  them 
for  the  deceased  partner's  interest.  Accordingly,  a 
provision  is  inserted  in  the  articles  of  copartnership, 
that  on  the  death  of  one  of  the  partners  the  survivor 
or  survivors  shall  have  the  privilege  of  taking  the 
deceased  partner's  interest  at  a  certain  price  there 
stated  and  agreed  upon.  Although  this  stipulation 
is  undoubtedly  binding  upon  the  deceased  partner's 
representatives,  yet  it  is  usual  for  him  to  refer  in 
his  will  to  the  partnership  agreement,  and  to  confer 


BEQUEATHABLE   OR  DEVISABLE    PROPERTY       105 

upon  his  executor  or  executors  every  power  neces- 
sary to  carry  out  the  agreement  as  if  he  were  living. 
See  p.  506. 

Some  of  the  following  forms  are  partly  framed  on 
articles  taken  from  actual  wills: 

General  Instructions  as  to  carrying  on  Testator's 
Business. 

I  authorize  and  empower  my  executors  to  con- 
tinue any  business  in  which  I  am  engaged  at  the  time 
of  my  decease  for  a  period  long  enough  to  settle, 
adjust  and  liquidate  the  same;  and  to  this  end  I 
clothe  them  with  all  power  and  authority  in  the 
premises,  including  that  of  renewing  promissory 
notes. 

Directions  to  Executors  to  continue  Testator's  Inter- 
est in  Partnership,  Liquidate  Same  and  Enter  into  New 
Partnership  and  Dispose  of  Interest  in  Either  Partner- 
ship or  Incorporate  the  Same. 

If  at  the  tune  of  my  decease  the  co-partnership  of 
K.  &  Co.,  of  which  I  am  at  present  the  senior  partner, 
shall  be  in  existence  I  authorize  and  empower  my 
said  executors  and  their  successors  to  continue  my 
interest  therein  conformably  to  the  provisions  of  the 
articles  of  co-partnership  entered  into  by  the  mem- 
bers of  the  existing  firm  on  the  [date].  If  it  is  deemed 
advisable  to  liquidate  said  partnership  and  enter 
into  a  new  one,  then  I  authorize  and  empower  my 
said  executors  and  their  successors  to  execute  proper 


106  TESTAMENTARY   FOKMS 

articles  of  co-partnership  with  the  members  of  the 
old  firm  or  so  many  of  them  as  propose  to  become 
partners  of  the  new  one,  and  to  this  end  I  authorize 
and  empower  my  said  executors  and  their  succes- 
sors to  contribute  to  the  new  firm  all  my  assets  and 
property  in  the  old  one  as  determined  by  the  liquida- 
tion aforesaid;  and  I  further  authorize  and  empower 
them  to  dispose  of,  sell  and  transfer  my  interest  in 
either  of  said  partnerships  on  such  terms  and  in  such 
manner  as  they  may  deem  best,  conformably  to  the 
provisions  of  the  co-partnership  articles.  If  it  is 
deemed  best  at  any  time  to  turn  either  of  said  partner- 
ships into  a  corporation,  I  confer  upon  my  said  exec- 
utors and  their  successors  full  power  and  authority 
to  sign  and  execute  all  papers,  documents  and  agree- 
ments, necessary  and  proper  hi  that  particular  and 
to  exchange  my  interest  in  either  of  said  part- 
nerships, in  whole  or  in  part,  for  shares  in  such 
corporation. 

Part  of  Residuum  Consisting  of  Partnership  to 
Remain  in  Partnership  for  a  Period  not  to  Exceed  Ten 
Years. 

All  the  rest,  residue  and  remainder  of  my  property, 
both  real  and  personal,  of  which  I  shall  die  seized 
and  possessed  and  to  which  I  shall  be  entitled  at 
the  tune  of  my  decease,  and  wherever  the  same  may 
be  situated,  I  give,  devise  and  bequeath  to  A.  B. 
and  to  his  heirs  and  assigns  forever,  but  with  this 
restriction,  however,  that  so  much  of  said  rest, 
residue  and  remainder  as  consists  of  my  interest 


BEQUEATHABLE   OR   DEVISABLE   PROPERTY       107 

in  the  business  conducted  under  the  firm  name  of 
C.  D.  &  Co.,  shall  remain  in  said  firm  or  partner- 
ship for  a  period  not  exceeding  ten  years  from  the 
day  of  my  death.  I  direct  that  my  said  residuary 
legatee  and  devisee  shall  in  no  event  become  a 
member  of  said  firm;  but,  as  I  have  the  fullest  con- 
fidence in  my  co-partners,  I  desire  them  to  continue 
said  partnership  so  long  as  in  their  judgment  they 
shall  see  fit  so  to  do,  not  exceeding  said  ten  years 
from  the  day  of  my  death.  And  I  direct  my  said 
co-partners  annually  to  pay  the  said  A.  B.  one-half 
the  net  profits  upon  his  interest  in  the  business 
during  the  preceding  year  and  retain  the  other  half 
in  the  business. 

Testator's  Capital  to  Remain  Two  Years  in  Business 
for  Benefit  of  Copartners. 

Having  every  confidence  in  my  co-partners  who 
are  associated  with  me  under  the  firm  name  of  D.  E. 
&  Co.,  I  propose  the  following  method  of  adjusting 
our  relations,  so  that  they  may  not  be  forced  to 
liquidate  the  affairs  of  the  firm  directly  after  my 
decease.  If  the  surviving  members  of  the  firm  so 
desire  and  so  elect  by  a  notice  in  writing  served  on 
my  executors  within  thirty  days  from  the  date  of 
the  probate  of  this  will,  my  said  executors  may 
allow  my  capital  account  to  remain  in  said  firm  for 
a  period  of  two  years  from  the  date  of  my  decease, 
when  the  whole  amount  thereof  shall  be  paid  by 
said  surviving  partners  to  my  said  executors.  The 
above  proposition  is  contingent  upon  the  under- 


108  TESTAMENTARY   FORMS 

standing  and  agreement  that  my  estate  is  not  to  be 
held  liable  for  any  debts  contracted  by  said  sur- 
viving partners  during  said  two  years,  as  my 
death  constitutes  an  absolute  dissolution  of  the  said 
co-partnership. 

The  above  proposition  is  also  contingent  upon 
said  surviving  partners  executing  to  my  said  execu- 
tors within  said  thirty  days  a  stipulation  hi  writing 
releasing  and  holding  my  estate  harmless  from  any 
and  all  losses  during  the  said  two  years  and  also 
agreeing  to  pay  my  said  executors  interest  at  the 
rate  of  five  per  cent  per  annum,  upon  the  amount 
of  my  capital  account  remaining  hi  said  firm  during 
said  period,  it  being  understood  that  my  said  estate 
is  to  have  no  share  hi  the  profits  of  the  business 
during  said  period. 

Executors  Directed  to  Keep  Estate  in  Partnership 
for  a  Period  of  Five  Years. 

I  authorize  and  empower  my  executors  to  keep 
and  continue  in  the  business  of  the  partnership  of 
which  I  am  a  member  and  which  is  conducted  under 
the  name  of  C.  Y.  &  B.,  for  a  period  not  exceeding 
five  years  from  the  probate  of  this  will,  any  portion 
of  my  estate  that  may  be  invested  hi  said  partner- 
ship at  the  tune  of  my  decease.  I  release  my  said 
executors  from  all  risk  incurred  and  losses  sustained 
by  said  partnership  during  said  period,  as  the  same 
are  to  be  borne  by  my  estate. 


BEQUEATHABLE   OR  DEVISABLE    PROPERTY        109 

Testator's  Business  to  be  Continued  according  to 
Articles  of  Copartnership. 

I  long  have  been  and  am  now  a  member  of  the 
co-partnership  of  J.  K.  &  Co.,  according  to  the 
articles  of  which  it  is  provided  that  the  co-partnership 
shall  be  continued  after  my  decease  for  a  period  not 
exceeding  three  years.  I  authorize,  empower  and 
direct  my  executors  to  carry  out  the  provisions  of 
said  articles  as  to  so  continuing  the  co-partnership 
by  co-operating  with  the  surviving  partners  in 
carrying  on  the  business  thereof  until  the  expiration 
of  the  period  provided  for.  I  authorize,  empower 
and  direct  my  said  executors  either  before  or  at  the 
end  of  the  period  referred  to  to  dispose  of,  sell  and 
transfer  to  my  surviving  partners  all  my  right,  title 
and  interest  in  and  to  the  assets,  property,  business 
and  profits  of  the  said  co-partnership  at  such  price 
as  shall  seem  to  them  just  and  satisfactory  and 
either  for  cash  or  upon  credit.  The  fact  that  one 
of  my  co-partners  is  also  one  of  the  executors  of  this 
will  shall  not  be  taken  against  him,  but  he  shall  be 
as  free  to  act  in  both  capacities  hi  all  dealings  with 
my  interest  in  the  co-partnership  whether  in  manage- 
ment or  in  purchase  and  sale  of  the  same,  as  if  he 
were  an  outside  and  disinterested  party. 

Provisions  as  to  Loans  by  Testator  to  his  Incor- 
porated Business. 

Four  years  ago  the  business  transacted  by  me 
under  the  name  of  B.  W.  was  incorporated  as  the 


110  TESTAMENTARY   FORMS 

"B.  W.  Company,  Incorporated."  At  present  there 
is  a  contract  subsisting  between  the  said  Company 
and  myself  relative  to  large  sums  of  money  loaned 
by  me  to  said  Company  and  to  the  continuance  of 
such  loans.  If  at  the  time  of  my  decease  said  con- 
tract is  still  valid  and  binding  or  if  any  other  con- 
tract of  a  similar  nature  is  existing,  then  I  authorize 
and  direct  my  executors  to  enter  into  any  stipula- 
tion and  arrangement  with  said  Company  which 
they  may  deem  suitable  and  best  providing  for  the 
retention  for  a  limited  and  reasonable  period  by  the 
Company  of  said  loans  so  that  it  may  avoid  embar- 
rassment in  paying  them.  But  said  stipulation  and 
arrangement  is  to  apply  (a)  only  to  money  loaned 
by  me  to  the  Company  at  the  time  of  my  decease. 
(b)  It  is  not  to  apply  to  accrued  or  accumulated 
profits,  and  (c)  It  is  not  to  create  but  is  absolutely 
to  avoid  any  partnership  between  said  Company  and 
my  said  executors  or  my  estate  at  large;  and  no 
other  property  of  mine  than  the  funds  so  loaned  to 
the  Company  is  to  incur  any  risk  or  liability 
whatever. 

Executors  Authorized  to  Wind  up  Testator's  Business. 

I  authorize  and  empower  my  executors  to  liqui- 
date, close  and  wind  up  my  partnership  business, 
conducted  under  the  name  of  A.  B.  &  Co.,  as  fully 
as  I  am  authorized  and  empowered  so  to  do  in  and 
by  the  articles  of  co-partnership.  I  trust  that  they 
will  exercise  good  judgment  and  sound  discretion  to 
the  end  that  all  unnecessary  losses  may  be  avoided. 


BEQUEATH  ABLE    OR   DEVISABLE   PROPERTY       111 

Directions  as  to  Incorporating  Business. 

As  my  entire  interest  and  property  in  the  firm  of 
A.  &  B.  falls  by  the  provisions  of  this  will  into  the 
residuum,  I  suggest  to  my  residuary  legatees  and 
to  my  co-partner,  B.,  that  they  turn  the  plant, 
property  and  business  of  the  co-partnership  into  a 
corporation  as  soon  as  is  feasible  after  my  decease. 
I  have  purposely  made  my  said  co-partner  B.  the 
executor  of  this  will  for  the  reason  that,  on  account 
of  his  knowledge  of  the  business,  he  may  facilitate 
the  incorporation  thereof. 

Authority  to  Carry  Out  Agreement  in  Copartner- 
ship Articles  as  to  Disposition  of  Testator's  Interest 
in  Copartnership. 

Whereas  by  my  articles  of  copartnership,  dated 
the  third  day  of  October,  1908,  I  covenanted  and 
agreed  with  my  partner  A.  B.  that  if  said  partner- 
ship existed  at  the  time  of  my  decease,  my  executrix 
should  offer  to  him  my  entire  interest  in  said  part- 
nership at  a  price  agreed  upon  and  set  forth  in  said 
articles  of  copartnership,  as  will  more  particularly 
appear  by  reference  thereto,  now  I  hereby  request 
and  direct  my  said  executrix  to  carry  out  said 
agreement  hi  every  particular  as  soon  as  can  be 
conveniently  done  after  she  receives  her  testamen- 
tary letters,  and  to  that  end  I  confer  upon  her,  as 
said  executrix,  every  power  and  authority  which  I 
should  possess  if  living. 


112  TESTAMENTARY   FORMS 

Completion  of  Contracts. 

As  radical  changes  are  contemplated  in  the  affairs 
of  the  A.  B.  C.  Co.,  of  which  I  am  the  largest  share- 
holder, now,  if  such  changes  shall  not  have  been 
effected  at  the  time  of  my  decease,  I  confer  upon 
my  executor  full  power  and  authority  to  carry  out 
and  complete  any  contract  or  contracts  that  I,  as  a 
shareholder,  may  have  entered  into  relative  to  such 
changes  and  any  further  contract  or  contracts  that 
may  be  deemed  desirable  and  necessary,  hereby  giv- 
ing my  said  executor  full  discretion  in  the  premises. 

XIX.    Authority  given  Executors  to  Sign,  Indorse,  etc., 
Commercial  Paper. 

To  give  executors  authority  to  sign  and  indorse 
notes  is,  of  course,  an  unusual  and  dangerous  ex- 
pedient. Such  power,  however,  may  be  properly 
conferred  in  a  few  cases;  and  the  folio  whig  are 
offered  as  forms: 

Signing,  Indorsing,  etc.,  Commercial  Paper. 

I  hereby  authorize  and  empower  my  executors 
(wife  and  son)  to  make,  sign,  accept  or  indorse 
promissory  notes,  bills  of  exchange  and  commercial 
paper  in  general,  if  they  deem  it  necessary  hi  the 
settlement  of  my  affairs,  the  same  to  be  as  binding 
and  obligatory  upon  my  estate  as  if  made,  signed, 
accepted  or  indorsed  by  me  in  my  lifetime.  I  sug- 
gest that  such  obligations  made  by  my  executors 
run  in  the  name  of  my  estate  and  that  they  be 


BEQUEATHABLE    OR   DEVISABLE    PROPERTY       113 

signed  as  follows:   "The  estate  of  A.  B.,  by  C.  D., 
E.  F.,  executors." 

Whereas  my  business  relations  with  M.  N.  are 
such  as  to  necessitate  the  hiring  of  money  by  the 
indorsement  of  his  notes,  now,  if  at  the  time  of  my 
decease,  I  am  liable  as  indorser  upon  any  promissory 
notes  signed  by  him,  I  authorize  and  empower  my 
executor  to  indorse  hi  the  name  of  my  estate  promis- 
sory notes  given  in  renewal  of  the  same;  such  new 
notes  to  be  limited  hi  payment  to  a  period  not 
exceeding  two  years  from  the  day  of  my  decease. 

Whereas  I  am  liable  as  an  indorser  on  a  promis- 
sory note  of  A.  B.  for  Five  Thousand  Dollars,  dated 
etc.,  payable  etc.,  and  now  held  by  the  Wayside 
National  Bank  of  etc.,  now,  if  at  the  tune  of  my 
decease  said  note  or  any  renewal  thereof  indorsed  by 
me  for  the  same  or  a  less  amount  and  by  whom  ever 
held  be  in  existence  and  a  charge  against  my  estate, 
then  I  authorize  and  empower  my  executor  in  his 
discretion,  to  indorse  a  renewal  note  or  renewal 
notes,  for  the  same  or  a  less  amount,  such  new  note 
or  notes  to  be  limited  hi  payment  to  a  period  not 
to  exceed  two  years  from  the  day  of  my  decease. 

Another  form  may  be  found  on  p.  561. 

XX.    Pews. 

Many  testators  provide  for  the  disposition  of  the 
family  pew.  The  attorney  should  ascertain  whether 


114  TESTAMENTARY    FORMS 

the  pew  is  a  part  of  the  realty  or  is  made  personal 
estate  by  statutory  provision.  Again,  many  religious 
societies  have  by-laws  or  regulations  as  to  the  assign- 
ment and  conveyance  of  pews,  and  these  should  be 
carefully  examined  before  the  will  is  drawn.  See 
34  Cyc.  of  Law  and  Procedure,  1174  et  seq. 

XXI.  Opera  Box. 

Wealthy  testators  frequently  dispose  of  their 
opera  boxes.  The  local  law  should  be  examined  to 
ascertain  whether  the  opera  box  is  personal  property 
or  is  regarded  as  real  estate;  and  attention  should 
also  be  given  to  rules,  regulations,  by-laws,  etc.,  if  any. 

XXII.  Dumb  Animals. 

It  is  not  uncommon  for  a  humane  testator  to  make 
provision  as  to  the  care,  custody,  etc.,  of  his  dumb 
animals. 

Forms  like  the  following  may  be  of  service: 

I  give  my  old  horse  John  and  all  my  cats  and  dogs 
to  my  friend  A.  B.,  and  request  him  to  dispose  of 
them  in  such  way  as  he  may  deem  best.  I  give  him 
a  legacy  of  five  hundred  dollars  and  request  him  to 
use  the  same  or  any  part  thereof  in  caring  for  said 
animals  or  in  depriving  them  of  life,  but  I  impose 
no  restrictions,  as  said  legacy  is  to  be  the  absolute 
property  of  A.  B. 

Whatever  cats  and  dogs  I  may  possess  at  the  time 
of  my  decease  I  give  and  bequeath  to  the  Society 


BEQUEATHABLE   OR   DEVISABLE    PROPERTY       115 

for  the  Prevention  of  Cruelty  to  Animals  of  etc.; 
and  I  authorize  the  manager  or  managers  of  said 
society  to  give  the  animals  away  or  to  deprive  them 
of  life,  as  he  or  they  may  deem  best.  I  give  the 
said  society  the  sum  of  fifty  dollars  to  pay  the  ex- 
penses incurred  in  the  temporary  care  of  said  animals, 
or  in  depriving  them  of  life,  the  balance  not  so  ex- 
pended to  be  retained  by  said  society  for  its  general 
purposes. 

I  give  to  the  Society  for  the  Prevention  of  Cruelty 
to  Animals  of  etc.  all  the  living  creatures  I  possess  at 
the  date  of  my  decease  to  be  disposed  of  in  the  most 
humane  manner  by  sale  or  otherwise. 

XXIII.    Manuscripts,  Papers,  Letters,  etc. 

Frequently  testators  give  special  instructions  as 
to  manuscripts,  letters,  etc.,  as  in  the  following 
forms: 

Manuscripts,  Papers,  Letters,  etc. 

I  give  all  my  manuscripts,  family  and  business 
letters  and  unpublished  papers  to  my  son,  A.  B.,  to 
dispose  of  as  he  may  deem  best. 

I  give  all  my  manuscripts,  papers,  documents 
and  letters  to  my  son  A.  B.  to  be  his  absolutely; 
but  I  trust  that  he  will  make  use  of  them  ac- 
cording to  wishes  I  have  already  made  known 
to  him. 


116  TESTAMENTARY   FORMS 

After  my  executors  have  completely  settled  my 
estate  and  are  ready  to  present  their  final  account 
to  the  court,  then  I  desire  and  direct  them  to  de- 
stroy all  my  manuscripts,  letters  and  unpublished 
papers. 

I  appoint  A.  B.  my  literary  executor  and  bequeath 
to  him  all  my  manuscripts,  papers,  documents  and 
letters.  I  request  him  to  prepare  and  publish  my 
"Life  and  Letters"  in  an  edition  of  three  thousand 
copies  and  take  out  the  copyright  of  the  same  in  the 
name  of  my  wife  C.  D.  I  direct  the  executors  of 
this  will  to  allow  the  said  A.  B.  a  sum  not  to  exceed 
Five  Thousand  Dollars  for  the  expenses  of  said 
publication;  and  I  also  give  the  said  A.  B.  a  legacy 
of  Five  Thousand  Dollars  to  be  paid  to  him  upon 
the  publication  of  the  book  in  compensation  for 
his  services.  The  said  A.  B.  as  literary  executor  is 
to  give  no  bond  or  security  of  any  kind;  he  is  to 
be  subject  to  no  restraint,  interference  or  dictation 
from  any  source;  and,  while  I  desire  him  to  consult 
from  tune  to  tune  with  my  wife  as  to  matters  per- 
taining to  the  production  of  the  volume,  his  acts 
and  doings  in  the  premises  are  not  to  be  called  in 
question  by  any  one. 

XXIV.    Various  Bequests,  Devises,  and  Provisions. 

In  many  jurisdictions  estates  tail  and  estates  of 
homestead  cannot  be  devised.  So  a  beneficial 
devise  or  legacy  to  a  subscribing  witness  or  to  the 
husband  or  wife  of  such  witness  is  often  declared  to 


BEQUEATHABLE   OR   DEVISABLE    PROPERTY       117 

be  void,  unless  the  other  subscribing  witnesses 
constitute  the  requisite  number.  "It  is  very  familiar 
law  that  a  devise  to  the  heirs  of  one  living  is  void. 
Nemo  est  haeres  viventis.  Shep.  Touchst.  415;  6  Cruise 
Dig.  tit.  38,  c.  10,  §  37."  Otis  v.  Prince,  10  Gray, 
581,  582.  "It  is  a  well  settled  rule  of  real  property, 
that  a  limitation  to  an  heir  in  a  devise  is  void,  and 
that  the  heir  cannot  be  a  purchaser;  Co.  Lit.  22  b; 
or,  to  state  the  rule  more  fully,  if  a  man  devises  by 
his  will  his  land  to  his  heir  at  law  and  his  heirs,  in 
such  case  the  devise,  as  such,  is  void,  and  the  heir 
will  take  by  descent  and  not  by  purchase,  for  the 
reason  that  the  title  by  descent  is  the  worthier  and 
better  title,  by  taking  away  the  entry  of  those  who 
might  have  a  right  to  the  land.  Powell  on  Devises, 
427,  430;  6  Cruise,  Greenl.  ed.,  151;  1  Jarman  on 
Wills,  67.  And  it  makes  no  difference  as  to  the  opera- 
tion of  this  rule  that  the  land  comes  to  the  heir 
charged  with  payment  of  annuities  or  legacies,  nor 
that  the  testator  devises  the  land  to  one  for  life, 
remainder  to  his  heir  at  law  in  fee,  in  which  latter 
case  the  heir  is  in,  on  the  termination  of  the  life 
estate,  by  descent  and  not  by  purchase.  So,  too,  it 
has  been  held,  that  the  limitation  to  the  heir,  by 
devise  in  fee,  after  an  estate  tail,  or  the  ingrafting  of 
an  executory  devise,  or  the  carving  out  of  a  con- 
tingent interest,  or  the  limiting  of  the  reversion 
in  fee,  or  the  alternate  fee,  to  the  heir  at  law,  will 
not  break  the  descent,  and  that  when  the  estate 
devolves  to  the  heir,  he  takes  by  descent  and  not 
by  purchase.  Powell  on  Devises,  427,  430;  1  Jarman 


118  TESTAMENTARY   FORMS 

on  Wills,  67;  Fearne's  Post.  Works,  128,  229;  1 
Eden,  462  note;  Doe  v.  Timins,  1  B.  &  Aid.  530; 
Manbridge  v.  Plummer,  2  Myl.  &  K.  93."  Ellis  v. 
Page,  7  Gush.  161,  163. 

If  a  testator  desires  to  give  his  property  in  the 
way  in  which  it  would  pass  by  descent  if  he  made 
no  will,  he  may  use  a  form  like  the  following: 

I  hereby  declare  that  I  dispose  of  all  the  property, 
real  and  personal,  of  which  I  shall  die  seized  and 
possessed  and  to  which  I  shall  be  entitled  at  the 
time  of  my  decease,  and  wherever  the  same  may 
be  situated,  in  exactly  the  same  manner  as  the  same 
would  descend  according  to  law,  as  if  no  will  were 
made  by  me,  that  is,  according  to  the  statutes  which 
provide  for  the  distribution  of  intestate  estates, 
both  real  and  personal.  I  constitute  and  appoint 
A.  B.  the  executor  of  this  will.  I  request  that  he 
be  exempt  from  giving  a  surety  or  sureties  upon  his 
official  bond,  and  I  authorize  and  empower  him  to 
sell,  as  such  executor,  both  real  and  personal  estate 
by  private  sale  or  by  public  auction,  and  convey  the 
same  by  such  deeds  or  other  instruments  as  may  be 
legal  and  proper. 

Sometimes  a  testator  inserts  in  his  will  a  pro- 
vision to  the  effect  that  a  certain  conveyance  of  real 
estate  made  by  him  during  his  life  is  confirmed,  as, 
"I  hereby  ratify  and  confirm  a  certain  conveyance 
to  A.  made  by  me  by  deed  dated,  etc.,  and  recorded, 
etc." 


BEQUEATHABLE    OR   DEVISABLE    PROPERTY       119 

As  to  illegal  gifts  it  is  a  general  rule  that  a  gift 
over,  if  the  original  gift  shall  be  declared  void,  is 
valid.  Sometimes  provision  is  made  for  the  sale  of 
the  property  and  the  payment  of  the  proceeds  to 
the  legatee.  Sometimes  also  it  is  provided  that  if 
one  provision  in  the  will  is  declared  void,  other  pro- 
visions shall  not  be  affected  thereby,  although  per- 
haps such  precautions  are  unnecessary. 

The  following  are  offered  as  forms: 

I  give  and  devise  to  the  Wanderers'  Asylum  of 
etc.,  in  fee  simple,  the  lot  of  land  and  the  houses 
situated  thereon,  located  on  the  north-east  corner 
of  E.  and  F.  streets  in  the  city  of,  etc.,  and  bounded 
and  described  as  follows  [description].  If  for  any 
reason  said  Asylum  is  not  permitted  by  law  to  take 
and  hold  the  above-mentioned  devise,  then  I  author- 
ize and  empower  my  executors  to  sell  the  same  by 
public  auction  or  by  private  sale,  either  for  cash  or  on 
credit  or  partly  on  cash  and  partly  on  credit,  and  exe- 
cute and  deliver  such  deeds  or  other  instruments  of 
conveyance  as  may  be  necessary  to  pass  a  valid 
title;  and  the  net  proceeds  of  such  sale  I  direct 
my  executors  to  turn  over  to  the  trustees  or  other 
authorities  of  said  Asylum  constituted  by  law  to 
receive  them. 

I  give  and  devise  all  my  real  estate  situated  in, 
etc.,  to  the  Wingwood  Hospital  of  etc.,  and,  if  for 
any  reason  this  devise  shall  be  declared  by  any  com- 
petent tribunal  to  be  void,  then  I  give  and  devise  all 


120  TESTAMENTARY   FORMS 

said  real  estate  to  etc.    The  following  is  an  accurate 
description  of  said  real  estate  [description]. 

If  any  provision  in  this  will  for  any  legatee  shall 
prove  to  be  invalid  and  void,  I  expressly  declare  that 
such  invalidity  shall  in  no  wise  affect,  control  or 
impair  any  other  provision  or  provisions  of  this  in- 
strument or  of  any  codicil  hereto. 

If  any  devises,  bequests,  provisions  or  directions 
in  this  will  shall  fail  and  become  invalid  for  any 
reason,  I  declare  and  direct  that  no  other  provision 
or  part  of  this  will  shall  be  affected,  impaired  or 
invalidated  thereby. 

It  is  advisable  that  all  bequests  should  be  definite 
and  certain.  Sometimes  a  testator  gives  a  certain 
person  a  legacy,  which,  added  to  the  property 
that  person  already  possesses,  will  make  a  certain 
amount.  Such  a  provision  is  too  uncertain  and  in- 
definite, yet  it  sometimes  appears,  as  in  the  fol- 
lowing form: 

I  give  A.  B.  a  sum  of  money,  which,  when  added  to 
the  property  she  already  possesses,  will  amount  to 
twenty  thousand  dollars. 

A  will  frequently  contains  a  direction  to  the  exec- 
utor to  purchase  some  memorial  or  token  of  remem- 
brance for  a  friend  of  the  testator. 

Forms  like  the  following  may  be  used : 


BEQUEATHABLE    OR   DEVISABLE    PROPERTY       121 

I  give  my  friends  A.  B.  and  C.  D.  each  one  hundred 
dollars  as  a  token  of  kindly  remembrance,  and  I 
trust  that  each  will  purchase  with  the  same  some 
memorial  object  which  will  serve  as  a  reminder  of 
my  regard  and  esteem. 

I  give  my  executor  the  sum  of  two  hundred  dollars 
and  I  direct  him  to  purchase  therewith  two  objects 
or  articles,  which  he  may  deem  suitable  for  the 
purpose,  and  present  them  to  my  friends  A.  B.  and 
C.  D.,  which  I  desire  them  to  keep  as  tokens  of 
my  esteem  and  remembrance. 

Ante-nuptial  agreements  are  not  uncommon.  It 
is  not  proposed  to  treat  this  subject  at  length  here, 
but  the  following  simple  form  and  confirmatory 
provision  in  the  will  are  offered. 

Ante-nuptial  Agreement. 

Whereas,  A.  B.,  of  etc.,  and  C.  D.,  of  etc.  desire, 
in  the  contemplation  of  marriage  with  each  other,  to 
effect  an  ante-nuptial  agreement  conformably  to 
law,  now,  therefore,  they  mutually  covenant  and 
agree  that  upon  the  solemnization  of  said  marriage: 

1.  The  said  C.  D.  shall  hold  in  her  own  name  and 
right  and  have  the  entire  disposition  of  all  the 
estate,  real  and  personal,  she  shall  possess  at  the 
time  of  the  marriage  and  also  such  other  estate,  real 
and  personal,  as  she  may  thereafter  in  any  way  ac- 
quire during  marriage;  and  she  may  dispose  of  all  of 
the  same  by  her  last  will  to  any  legatee  or  legatees, 


122  TESTAMENTARY   FORMS 

devisee  or  devisees  she  may  select,  other  than  the 
said  A.  B.,  and,  in  default  of  such  will,  her  entire 
estate,  real  and  personal,  shall  descend  according  to 
the  statutes  then  in  force  relative  to  the  distribu- 
tion of  intestate  estates,  to  the  exclusion,  however, 
of  the  said  A.  B.,  who  shall  in  no  event  take  any 
part  thereof  as  her  heir  or  under  any  statutory 
provisions. 

2.  The  said  A.  B.  shall  hold  in  his  own  name  and 
right  and  have  the  entire  disposition  of  all  the  estate, 
real  and  personal,  he  shall  possess  at  the  tune  of  the 
marriage  and  also  such  other  estate,  real  and  per- 
sonal, as  he  may  thereafter  in  any  way  acquire  during 
marriage;  and  he  may  dispose  of  all  of  the  same  by 
his  last  will  to  any  legatee  or  legatees,  devisee  or 
devisees  he  may  select,  other  than  the  said  C.  D., 
and,  in  default  of  such  will,  his  entire  estate,  real 
and  personal,  shall  descend  according  to  the  statutes 
then  in  force  relative  to  the  distribution  of  intestate 
estates,  to  the  exclusion,  however,  of  the  said  C.  D., 
who  shall  in  no  event  take  any  part  thereof  as  his 
heir  or  under  any  statutory  provisions. 

3.  The  said  C.  D.  shall  during  coverture,  at  her 
husband's  request,  and,  after  his  decease,  if  she  sur- 
vives him,  at  the  request  of  his  executors,  admin- 
istrators, devisees,  or  heirs,  relinquish  by  deed  dower 
in  any  and  all  his  real  estate  and  all  her  rights 
therein  under  the   homestead   exemption   laws,  if 
any;  and  she   shall   receive  no   compensation   for 
such  relinquishment. 

4.  The  said  A.  B.  shall  during  coverture,  at  his 


BEQUEATHABLE   OR   DEVISABLE    PROPERTY       123 

wife's  request,  and,  after  her  decease,  if  he  survives 
her,  at  the  request  of  her  executors,  administrators, 
devisees,  or  heirs,  relinquish  by  deed  curtesy  in  any 
and  all  her  real  estate;  and  he  shall  receive  no  com- 
pensation for  such  relinquishment. 

5.  This  agreement  shall  be  and  is  a  bar  both  in 
law  and  equity  to  any  claim  A.  B.,  if  he  survives 
C.  D.,  may  make  to  any  part  of  her  realty  and  per- 
sonalty and  to  any  claim  C.  D.,  if  she  survives  A.  B., 
may  make  to  any  part  of  his  realty  and  personalty. 

In  testimony  whereof,  etc. 

A.  B. 
C.  D. 

[Acknowledgment.] 

Provision  to  be  Inserted  in  Witt. 

Whereas  by  an  ante-nuptial  agreement  dated,  etc., 
I  relinquished  all  my  interest  in  the  estate  of  my 
wife,  C.  D.,  [my  husband,  A.  B.]  and  she  [he]  re- 
linquished all  her  [his]  interest  in  mine,  I  now  ratify 
said  ante-nuptial  agreement  in  every  particular  and 
declare  that  in  no  event  is  this  will  to  be  so  con- 
strued as  to  make  her  [him]  a  devisee  or  legatee 
hereunder. 

Often  the  ante-nuptial  contract  provides  for  the 
giving  up  by  the  wife  of  all  interest  in  both  the  real 
and  personal  estate  of  the  husband  in  consideration 
of  a  certain  sum  to  be  paid  to  her  after  his  death. 
In  the  husband's  will  should  appear  a  provision  like 
the  following: 


124  TESTAMENTARY   FORMS 

I  direct  my  executors  as  soon  as  may  be  after  my 
decease  to  pay  to  my  wife,  C.  D.,  the  sum  of  fifty 
thousand  dollars  in  performance  of  the  ante-nuptial 
contract  made  between  us  on  the  tenth  day  of  etc., 
in  lieu  of  dower  and  all  rights  whatever  in  my  real  and 
personal  estate. 


IT  is  understood  as  a  general  rule  that  any  person 
is  capable  of  being  a  legatee,  excepting  such  as  are 
expressly  forbidden.  1  Williams  on  Executors,  799. 

In  most  jurisdictions  a  married  woman  is  now  ca- 
pable of  taking,  holding,  managing,  and  disposing  of 
property  by  will  or  otherwise  as  if  she  were  a  feme 
sole.  But  forms  like  the  following  are  still  common 
both  in  the  case  of  married  and  unmarried  women: 

Sole  and  Separate  Use. 

I  give  my  daughter  A.  B.  the  sum  of  ten  thousand 
dollars  which  is  to  be  paid  to  her  upon  her  separate 
receipt. 

The  separate  receipts  of  my  daughters,  A.  B.,  C.  D. 
and  E.  F.  for  the  legacies  given  them  herein  shall  be 
sufficient  without  any  act  or  assent  of  their  husbands; 
and  said  legacies  are  intended  and  declared  to  be  for 
the  sole  and  separate  use  and  enjoyment  of  said 
daughters  without  any  interference  or  control  of 
said  husbands. 

Every  interest  or  estate  given  in  this  will  to  any 
female,  married  or  unmarried,  shall  be  for  her  sep- 

125 


126  TESTAMENTARY   FORMS 

arate  use,   independently  of  any  other  person  or 
persons. 

All  moneys  payable  under  this  will  to  or  for  the 
benefit  of  any  female  shall  be  for  her  sole  and  sep- 
arate use  and  free  from  the  control  and  interference 
of  her  husband  or  any  other  person. 

Aliens  may  take  personal  property  by  bequest, 
and  in  most  places  they  may  take  real  estate  by 
devise.  See  Extracts  from  Treaties,  ante,  p.  18  et 
seq.  See  also  Remsen  on  Wills,  109. 

Great  care  should  be  taken  never  to  give  legacies 
or  devises  to  subscribing  witnesses  or  to  the  wives  or 
husbands  of  subscribing  witnesses.  In  some  juris- 
dictions there  are  statutes  on  the  subject,  but,  if 
the  attorney  sees  to  it  that  only  disinterested  people 
witness  the  will,  no  question  can  be  raised. 

In  many  cases  gifts  to  unincorporated  societies  are 
void  for  uncertainty  of  the  beneficiary.  In  some 
States  where  charitable  trusts  have  not  been  abol- 
ished, it  has  been  held  that  the  members  of  the  society 
may  be  treated  as  trustees  and  the  specified  charity 
be  upheld;  but  gifts  to  unincorporated  societies  hav- 
ing definite  objects  have  sometimes  been  held  void 
for  uncertainty.  See  Rood  on  Wills,  §  439. 

In  nearly  all  States  corporations  seem  to  be  un- 
restricted. In  a  few  States  they  are  disqualified 
unless  specially  authorized  to  take.  In  many  juris- 
dictions the  amount  of  property  which  a  corporation 
may  hold  is  fixed  by  statute.  For  a  case  where  a 


WHO   MAY   BE   A   DEVISEE    OR   LEGATEE  127 

corporation  was  authorized  by  statute  to  hold  prop- 
erty of  double  the  amount  allowed  by  its  charter, 
in  order  to  take  a  legacy  under  a  will,  see  Baker  v. 
Clarke,  110  Mass.  88.  In  drawing  a  will,  in  which 
the  testator  is  to  make  corporations  devisees  or 
legatees,  the  attorney  should  be  familiar  with  local 
statutes.  If  the  testator  proposes  to  make  a  devise 
or  legacy  to  a  corporation  in  a  jurisdiction  other 
than  his  own,  it  is  particularly  incumbent  upon  the 
attorney  to  ascertain  the  law  of  that  jurisdiction  on 
the  subject. 

Municipal  corporations  are  generally  capable  of 
taking  bequests  and  devises.  Vidal  v.  Girard,  2 
How.  127;  Girard  v.  Philadelphia,  7  WaU.  1;  Lovell 
v.  Charlestown,  66  N.  H.  584;  Higginson  v.  Turner, 
171  Mass.  586;  Christy  v.  Commissioners,  41  Ohio 
St.  711;  Bedford  v.  Bedford,  99  Ky.  273;  Hayward 
v.  Davidson,  41  Ind.  212;  McDonogh  v.  Murdoch, 
15  How.  367.  The  United  States  may  be  a  devisee 
or  legatee.  Dickson  v.  United  States,  125  Mass.  311, 
315.  As  to  the  law  in  New  York,  however,  see 
United  States  v.  Fox,  94  U.  S.  315. 


CHAPTER  VI 

FORM  OF  WILLS 

"THE  law  has  not  made  requisite,  to  the  validity 
of  a  will,  that  it  should  assume  any  particular  form, 
or  be  couched  in  language  technically  appropriate 
to  its  testamentary  character.  It  is  sufficient  that 
the  instrument,  however  irregular  in  form  or  inarti- 
ficial in  expression,  discloses  the  intention  of  the 
maker  respecting  the  posthumous  destination  of  his 
property;  and,  if  this  appear  to  be  the  nature  of  its 
contents,  any  contrary  title  or  designation  which  he 
may  have  given  to  it  will  be  disregarded."  1  Jar- 
man  on  Wills,  19. 

Statutes  generally  provide  that  the  will  must  be 
in  writing,  and  that  this  may  include  printing, 
engraving,  lithographing,  and  any  other  mode  of 
representing  words  and  letters.  While  the  most  in- 
formal and  artificial  documents  may  be  probated  as 
wills,  if  duly  executed,  it  must  be  remembered  that 
the  probate  of  a  will  simply  establishes  its  due  exe- 
cution by  the  testator. 

Great  care  should  be  given  to  chirography,  punctu- 
ation, the  arrangement  of  paragraphs,  etc.;  and  the 
will  should  be  written  with  uniformity,  as  the  court 
will  in  some  cases  look  at  an  original  will  with  a 
view  of  deriving,  from  the  form,  character,  or  man- 

128 


FORM  OF  WILLS  129 

ner  of  writing,  or  from  what  otherwise  appears 
thereon,  aid  in  determining  the  meaning  or  construc- 
tion of  the  will.  See  Oppenheim  v.  Henry,  9  Hare, 
802,  n.;  Philips  v.  Chamberlaine,  4  Vesey,  51,  56; 
Compton  v.  Bloxham,  2  Coll.  (Chan.)  201,  203. 
"  Punctuation  may  perhaps  be  resorted  to  when  no 
other  means  can  be  found  of  solving  an  ambiguity; 
but  not  in  cases  where  no  real  ambiguity  exists, 
except  what  punctuation  itself  creates."  Arcu- 
larius  v.  Sweet,  25  Barb.  403,  406.  "Punctuation  is 
never  controlling.  The  intention  is  always  to  be 
ascertained  exclusively  from  the  words  employed  by 
the  testator,  viewed  in  the  light  afforded  by  the  con- 
text. The  punctuation  or  the  lack  of  punctuation  is 
not  material  and  may  be  omitted  or  supplied  by  the 
court."  1  Underbill  on  Wills,  §  369. 

In  the  important  case  of  Sears  v.  Hardy,  120  Mass. 
524,  527,  "It  appeared  by  a  fac-simile  of  the  will, 
which  was  before  the  court,  that  each  paragraph 
began  at  the  very  beginning  of  a  line;  that  the  word 
'town'  came  to  the  end  of  the  last  line  on  the  third 
page;  and  that  the  word  'And'  began  the  first  line 
of  the  fourth  page.  At  the  argument  it  was  in  dispute 
whether  the  word  'And'  began  a  new  paragraph  or 
not." 

In  some  jurisdictions  if  a  will  duly  executed  in- 
corporates in  itself  by  reference  any  outside  docu- 
ment or  paper,  such  outside  document  or  paper  so 
referred  to,  if  hi  existence  at  the  tune  of  the  execu- 
tion of  the  will  and  clearly  identified  as  the  document 
or  paper  referred  to  therein,  takes  effect  as  part  of 


130  TESTAMENTARY   FORMS 

the  will.  Young's  Estate,  123  Cal.  337;  Newton  v. 
Seaman's  Society,  130  Mass.  91;  Baker's  Appeal, 
107  Pa.  St.  381.  This  is  a  loose  and  unsatisfactory 
method.  Of  course,  there  are  cases  where  it  is  natural 
and  proper  to  refer  to  book  charges  against  legatees. 
See  p.  256.  In  this  connection  it  should  be  stated 
that  precatory  words  should  be  avoided,  and  that  no 
language  which  might  be  construed  to  create  a  secret 
trust  should  be  used.  See  Arnherst  College  v.  Ritch, 
151  N.  Y.  282.  A  will  provided  as  follows:  "I  give 
to  my  wife,  A.  C.  P.,  all  the  rest  of  my  estate,  what- 
ever the  same  may  be,  to  be  at  her  sole  use  and  dis- 
posal. My  said  wife  is  fully  acquainted  with  my 
reasons  for  this  disposal  of  my  estate,  and  will  by 
her  own  last  testament  do  what  is  right  and  just  to 
my  children  and  their  natural  heirs."  The  Court 
said:  "The  last  words  do  not  create  a  trust,  but  state 
the  motive  for  not  doing  so.  They  express  the  tes- 
tator's confidence  that  his  wife  will  do  what  is  just 
of  her  own  motion,  as  a  reason  why  he  leaves  the 
property  to  her  unfettered  disposition."  Sturgis  v. 
Paine,  146  Mass.  354,  365. 

It  frequently  happens  that  a  testator  makes  an 
absolute  disposition  of  property  with  the  request 
that  the  legatee  will  comply  with  certain  specified 
wishes  hi  relation  thereto.  As  such  forms  of  expres- 
sion are  often  construed  to  create  trusts,  etc.,  it 
would  seem  to  be  safer  for  a  testator  to  draw  up  writ- 
ten instructions  entirely  distinct  from  the  will.  The 
paper  containing  them  may  be  mentioned  in  the  will, 
but  not  so  as  to  be  made  a  part  thereof. 


FORM   OF   WILLS  131 

The  following  forms  may  be  used  in  certain 
cases : 

Pecuniary  Legacy. 

I  give  my  friend  A.  B.  the  sum  of  Five  Hundred 
Dollars  and  I  request  him  to  expend  the  said  sum 
in  conformity  to  instructions  contained  in  a  certain 
paper  signed  by  me,  which  will  be  found  in  the 
envelope  with  this  will  at  the  time  of  my  decease. 
These  instructions  are  not  to  be  regarded  as  in  any 
sense  a  part  of  this  will  or  as  obligatory  upon  the 
said  A.  B.  but  I  feel  sure  that  he  will  carry  them  out 
in  good  faith  as  I  desire.  I  direct  my  said  executor 
to  pay  the  said  sum  of  Five  Hundred  Dollars  to  the 
said  A.  B.  and  to  take  his  personal  receipt  for  the 
same,  and  thereupon  my  said  executor  shall  be  re- 
leased from  all  responsibility  therefor,  as  the  said 
Five  Hundred  Dollars  is  given  to  said  A.  B.  abso- 
lutely in  his  own  right  and  name. 

Instructions  as  to  Disposition  of  Pecuniary  Legacy. 

To  my  friend  A.  B. 

Whereas  by  my  last  will  and  testament,  dated, 
etc.,  I  gave  my  friend  A.  B.  the  sum  of  Five  Hun- 
dred Dollars  to  be  his  absolutely,  stating,  however, 
that  I  desired  him  to  expend  the  same  according 
to  instructions  contained  in  a  certain  paper  to  be 
found  in  the  same  envelope  with  my  will  at  the 
tune  of  my  decease.  Now,  therefore,  I  request  the 
said  A.  B.  to  expend  the  said  Five  Hundred  Dollars 
for  the  education  of  his  daughter  C.  D.,  hi  such 


132  TESTAMENTARY   FORMS 

way  as  he  may  deem  best  for  her  welfare  and  im- 
provement, and  if  the  said  C.  D.  shall  die  before 
the  expenditure  of  all  or  any  part  thereof  as  directed, 
I  desire  the  said  A.  B.  to  keep  the  same  as  a  mark 
of  my  personal  esteem. 

In  the  event  of  the  death  of  the  said  A.  B.  before 
all  of  the  Five  Hundred  Dollars  has  been  expended 
as  above  directed,  I  trust  that  the  said  A.  B.  will 
leave  a  will  providing  for  the  expenditure  upon  the 
education  of  the  said  C.  D.  of  such  unused  balance. 

Legacy  of  Porringer. 

I  give  the  silver  porringer  upon  which  appear  the 
initials  A.  V.  W.  and  the  date,  1763,  and  which  has 
been  in  our  family  for  many  years  to  my  son  B.  W., 
to  be  his  absolutely.  My  executor  will  find  in  the 
envelope  which  contains  this  will  a  writing  signed  by 
me  and  addressed  to  the  said  B.  W.,  in  which  writ- 
ing I  request  him  to  dispose  of  this  porringer  in  a 
certain  way  after  his  decease;  but  the  said  writing 
is  not  to  be  regarded  as  a  part  of  this  will  or  in  any 
sense  obligatory  upon  the  said  B.  W. 

Writing  containing  Request  as  to  Porringer. 

To  my  son,  B.  W. 

I  have  given  you  by  my  will  the  silver  porringer 
which  I  value  so  highly  and  now  desire  you  to  dis- 
pose of  the  same  at  the  time  of  your  decease  in 
accordance  with  the  following  request.  I  am  sen- 
sible of  the  inconvenience  and,  perhaps,  danger  of 
imposing  a  trust  upon  personal  effects  and  hence 


FORM   OF   WILLS  133 

have  resorted  to  what  I  believe  to  be  a  simple  and 
satisfactory  method  of  transmission.  I  trust  that 
you  will  select  some  male  member  of  the  family  in 
the  next  generation,  that  is,  one  of  my  grandchil- 
dren, as  the  donee  and  recipient  of  the  porringer 
upon  your  decease.  I  suggest  that  you  give  him  the 
porringer  by  will  to  be  his  absolutely  and  that  you 
leave  a  writing  similar  to  this,  separate  from  your 
will,  addressed  to  him  and  containing  suggestions 
as  to  his  giving  the  porringer,  at  the  time  of  his  de- 
cease, to  some  male  member  of  the  family  hi  the 
next  generation  after  him. 

Pecuniary  Legacy. 

I  give  my  friend  A.  B.  the  sum  of  one  thousand 
dollars,  and,  while  the  bequest  is  to  be  his  abso- 
lutely, I  trust  he  will  dispose  of  the  same  conform- 
ably to  a  request  in  writing  which  I  have  already 
drawn  up  and  which  will  be  found  among  my  papers 
at  the  time  of  my  decease.  This  writing  is  to  be 
regarded  as  in  no  sense  a  part  of  this  will  or  as 
legally  obligatory  upon  the  said  A.  B.  I  feel  confi- 
dent, however,  that  he  will  faithfully  carry  out  my 
wishes  contained  therein. 

Writing. 

To  my  friend,  A.  B. 

I  have  given  you  by  my  will  a  legacy  of  one  thou- 
sand dollars  in  the  belief  that  you  will  dispose  of  the 
same  conformably  to  the  request  I  have  already  made 
to  you  verbally,  which  request  I  now  repeat.  I  desire 


134  TESTAMENTAKY   FORMS 

this  money  to  go  to  my  nephew  C.  D.  provided  his 
habits  at  the  expiration  of  five  years  from  the  prov- 
ing of  my  will  are  satisfactory  to  you.  I  have  entire 
confidence  in  your  integrity  and  judgment.  I  sug- 
gest that  you  withhold  from  the  said  C.  D.  all 
knowledge  of  this  paper  until  the  said  five  years 
have  elapsed,  and  that  then,  if  in  your  opinion  his 
character  is  established  and  his  habits  are  satis- 
factory, you  pay  over  said  one  thousand  dollars, 
with  any  increase  and  accumulations,  to  the  said 
C.  D.  to  be  his  absolutely.  I  suggest  that  when 
this  sum  is  paid  over  to  you  by  my  executor  you 
invest  the  same  in  a  safe  bond  or  deposit  the  same 
in  a  Savings  Bank.  If  at  the  end  of  the  said  five 
years  you  conclude  that  the  said  C.  D.'s  habits  and 
character  are  such  as  not  to  justify  the  payment  to 
him  of  the  one  thousand  dollars  and  increase  and 
accumulations,  if  any,  I  desire  you  to  tell  him  just 
what  he  has  lost  by  his  bad  conduct  and  perversity. 
You  may  then  dispose  of  the  one  thousand  dollars 
and  increase  and  accumulations,  if  any,  in  any 
way  you  see  fit,  keeping  it  yourself  or  giving  it  to 
charitable  and  religious  institutions.  If  you  should 
die  before  the  expiration  of  the  said  five  years  with- 
out leaving  a  will  containing  a  provision  authoriz- 
ing your  executor  or  some  other  person  to  carry  out 
my  request  relative  to  the  subject,  embarrassment 
and  possible  litigation  might  result.  Let  me  sug- 
gest, therefore,  if  you  make  your  will,  to  provide 
therein  for  the  execution  of  my  wishes  as  expressed 
above. 


FORM   OF  WILLS  135 

Bequests  of  Papers,  Documents,   etc. 

I  give  and  bequeath  to  my  friend  A.  B.  to  be  his 
absolutely  all  my  papers,  writings,  documents  and 
memoranda,  meaning  thereby  all  my  original  pro- 
ductions, and  I  desire  him  to  dispose  of  the  same  as 
requested  by  me  in  a  letter  of  instructions  which 
will  be  found  at  the  tune  of  my  decease  in  the  en- 
velope which  contains  this  will.  This  letter  of  in- 
structions is  not  to  be  regarded  as  a  part  of  this 
will  and  the  carrying  out  of  its  provisions  is  to  be 
in  no  sense  obligatory  upon  the  said  A.  B. 

Letter  of  Instructions. 

To  my  friend,  A.  B. 

I  have  given  you  by  will  all  my  papers,  writings, 
documents  and  memoranda  and  you  are  to  regard 
yourself  as  the  absolute  owner  thereof.  However, 
I  request  you  to  dispose  of  the  same  conformably 
to  verbal  requests,  hitherto  made  by  me,  which  re- 
quests I  now  repeat.  I  desire  you  to  destroy  all  of 
those  papers,  writings,  documents  and  memoranda 
which  you  regard  of  no  value,  and  to  give  the  rest 
to  any  historical  or  antiquarian  society  which  may 
regard  them  as  of  value  and  which  may  care  to  re- 
ceive them. 

Devise  of  Homestead. 

I  give  and  devise  to  my  son  A.  B.  the  homestead 
in  which  I  now  reside,  to  have  and  to  hold  to  him  and 
his  heirs  and  assigns  forever.  The  following  is  an 


136  TESTAMENTARY   FORMS 

accurate  description  of  said  homestead  [description]. 
I  have  left  with  this  will  for  my  said  son,  A.  B.,  a 
memorandum  in  writing,  in  which  I  request  him  to 
devise  said  homestead  in  his  own  will  in  a  certain 
way;  but  such  memorandum  is  in  no  sense  a  part  of 
this  will  nor  are  its  provisions  in  any  way  obligatory 
upon  the  said  A.  B. 

Memorandum  as  to  Homestead. 

To  my  son,  A.  B. 

I  have  given  you  by  will  the  homestead,  which 
has  been  in  our  family  for  over  a  hundred  years. 
I  confess  that  I  take  pride  in  the  fact  and  I  trust 
that  it  may  be  retained  in  the  family  for  many 
years  to  come.  I  hope  that  you  will  not  sell  the 
same,  but  that  you  will  devise  it  to  your  only  son, 
with  the  view  of  keeping  it  in  the  family  as  long  as 
possible. 

Pecuniary  Legacy. 

I  give  my  brother,  A.  B.,  the  sum  of  Twenty 
Thousand  Dollars  to  be  his  absolutely,  and  I  desire 
hmi  to  dispose  of  the  same  conformably  to  a  re- 
quest stated  in  a  memorandum  addressed  to  him, 
which  will  be  found  among  my  papers  at  the  time 
of  my  decease.  But  said  memorandum  is  not  to  be 
regarded  as  a  part  of  this  will,  and  the  request  therein 
is  hi  no  sense  to  impose  any  legal  obligation  upon 
him. 


FORM   OF   WILLS  137 

Request  as  to  Disposition  of  Pecuniary  Legacy. 

To  my  brother,  A.  B. 

I  have  given  you  by  will  Twenty  Thousand 
Dollars  to  be  yours  absolutely.  I  trust,  however, 
that  you  will  apply  the  same  to  promote  the  philan- 
thropic work  in  which  we  have  been  so  long  jointly 
interested.  I  impose  no  trust  or  obligation  of  any 
nature  but  leave  you  entirely  free. 

Often  counsel  or  wishes,  which  have  no  legal 
effect,  may  be  expressed,  as  in  the  following  provi- 
sion taken  from  an  English  will  recently  admitted 
to  probate: 

I  hereby  enjoin  my  dearly  beloved  daughter  and 
my  son-in-law  to  observe  the  advice  here  set  down 
for  their  benefit:  Be  saving;  take  very  little  risk  and 
do  not  lend  money,  for  my  experience  in  this  respect 
has  been  unfortunate.  Rather  give  what  you  can 
afford  and  let  it  go  at  that. 

For  other  forms  see  pp.  500,  547,  553,  556. 

There  is  no  fixed  form  for  the  commencement  of 
a  will;  it  should,  however,  be  brief.  An  intent  de- 
clared in  the  preamble  of  a  will,  for  instance,  "de- 
sirous of  disposing  of  all  my  estate,"  may  have  the 
effect  to  construe  a  doubtful  devise  in  the  clause  to 
carry  a  fee,  which  would  otherwise  carry  an  estate 
for  life  only,  and  leave  a  remainder.  Quincy  v. 
Rogers,  9  Gush.  291,  295. 


138  TESTAMENTARY   FORMS 

The  following  are  common  forms : 

Know  all  men  by  These  Presents,  That  I,  A.  B., 
of  etc.,  being  of  sound  and  disposing  mind  and 
memory,  do  make  this  my  last  will  and  testament, 
revoking  all  wills  and  codicils  by  me  at  any  time 
heretofore  made. 

Know  All  Men  by  These  Presents,  that  I,  A.  B., 
of  etc.,  do  make  this  my  last  will  and  testament. 

This  is  the  last  will  and  testament  of  me,  A.  B. 
of  etc. 

I,  A.  B.,  of,  etc.,  do  make,  publish  and  declare  the 
following  as  and  for  my  last  will  and  testament. 

Be  it  remembered  that  I,  A.  B.,  of,  etc.,  do  make 
this  my  last  will  and  testament,  intending  hereby  to 
dispose  of  all  the  property  over  which  I  shall  at  my 
decease  have  a  right  of  disposition,  by  appointment, 
will,  or  otherwise. 

I,  A.  B.,  of,  etc.,  hereby  revoke  all  testamentary 
dispositions  heretofore  made  by  me  and  declare  this 
to  be  my  last  will  which  I  make  this  tenth  day  of, 
etc. 

In  the  Name  of  God,  Amen;  I,  A.  B.,  of,  etc., 
being  of  sound  and  disposing  mind  and  memory, 
and  mindful  of  the  uncertainty  of  life,  do  make, 
publish  and  declare  this  to  be  my  last  will  and  testa- 
ment, hi  manner  following,  that  is  to  say: 


CHAPTER  VII 

DIFFERENT  KINDS  OF  WILLS 

WHILE  a  will  may  be  in  nearly  any  form,  it  is  de- 
sirable that  all  wills  should  be  carefully  prepared 
and  duly  executed  according  to  law. 

Holographic  Wills. 

"A  holographic  will  is  one  entirely  written,  dated 
and  signed  by  the  hand  of  the  deceased."  Under- 
bill on  Wills,  §  9.  These  wills  are  allowed  hi  many 
States,  and  there  are  relative  to  them  numerous 
statutes,  which  should  be  faithfully  followed.  See 
Remsen  on  Wills,  19. 

Nuncupative  Wills. 

Nuncupative  wills  are  those  generally  made  by 
soldiers  in  actual  military  service  or  by  mariners  at 
sea,  and  relate  to  personal  property.  There  are  hi 
many  jurisdictions  statutes  on  the  subject,  but  wills 
of  this  nature  are  rare. 

Mutual  and  Joint  Wills. 

"The  doctrine  of  the  principal  text-writers  seems 
to  be  that,  when  a  fair  and  definite  agreement  has 
been  entered  into  between  two  persons  to  make 

139 


140  TESTAMENTARY   FORMS 

mutual  wills,  and  such  wills  have  been  duly  exe- 
cuted, neither  can  revoke  his  will  without  giving 
notice  to  the  other  of  such  revocation."  4  Am.  Law 
Review,  658,  and  cases  cited. 

A.  made  an  oral  promise  to  make  a  will  of  all  his 
property,  real  and  personal,  in  favor  of  B.,  who,  in 
consideration  thereof,  agreed  to  make  a  similar  will 
in  favor  of  A.,  and  made  one  accordingly.  It  was 
held  to  be  a  contract  for  the  sale  of  lands,  within 
the  Statute  of  Frauds.  In  this  case  the  personal 
estate  was  of  minor  importance,  and  the  agreement 
in  respect  to  it  was  not  divisible  from  that  relating 
to  the  real  estate.  Gould  v.  Mansfield,  103  Mass. 
408. 

A  joint  will  differs  from  a  mutual  will  in  this,  that 
it  is  a  single  instrument  made  by  two  persons,  and 
intended  by  them  to  operate  as  the  will  of  both. 
See  Schumaker  v.  Schmidt,  44  Ala.  454,  467. 

Both  mutual  and  joint  wills  are  not  advisable. 

The  result  desired  may  often  be  effected  by  A. 
making  a  will  giving  all  his  property  to  B.,  and  by 
B.  making  a  will  giving  all  his  property  to  A.  Then 
on  the  death  of  one  the  survivor  will  destroy  his 
own  will. 

Conditional  Wills. 

"There  are  two  points  to  be  settled  before  a  will 
can  be  rejected  from  probate  on  the  ground  that  it 
is  a  conditional  will,  and  that  the  condition  has 
failed:  first,  whether  the  intention  of  the  testator 
is  to  make  the  validity  of  the  will  dependent  upon 


DIFFERENT   KINDS   OF   WILLS  141 

the  condition,  or  merely  to  state  the  circumstances 
and  inducements  which  lead  him  to  make  a  testa- 
mentary provision;  and,  secondly,  if  the  language 
clearly  imports  a  condition,  whether  it  applies  to 
and  affects  the  whole  will,  or  only  some  parts  of  it." 
Damon  v.  Damon,  8  Allen,  192,  194. 

In  this  case  the  testator  commenced  his  will  thus: 
"I,  A.  B.,  being  about  to  go  to  Cuba,  and  knowing 
the  danger  of  voyages  do  make  this  as  my  last  will 
and  testament,  in  manner  and  form  following:  first, 
if  by  any  casualty  or  otherwise  I  should  lose  my  life 
during  this  voyage,  I  give  and  bequeath  to  my  wife," 
etc.,  and  afterwards  gave  independent  bequests, 
and  spoke  of  the  instrument  as  his  last  will  and 
testament.  He  made  the  voyage,  returned,  and 
afterwards  died;  it  was  held  that  the  will  should  be 
admitted  to  probate. 

A  devise  to  A.,  in  consideration  of  the  testator 
being  taken  good  care  of  and  well  treated  by  A.  for 
the  remainder  of  the  testator's  life,  is  not  a  devise 
on  condition.  The  maintenance  of  the  testator  is 
the  consideration  inducing  him  to  make  the  will, 
and  failure  of  the  consideration  will  not  defeat  the 
will.  Martin  v.  Martin,  131  Mass.  547. 

In  Goods  of  Smith,  L.  R.  1  Prob.  &  D.  717,  it  ap- 
peared that  the  codicil  provided,  "I  give  my  wife 
the  option  of  adding  this  codicil  to  my  will  or  not, 
as  she  may  think  proper  or  necessary."  It  was 
held  that  as  the  wife  elected  not  to  avail  herself  of 
its  provisions,  it  ought  not  to  be  included  in  the 
probate. 


142  TESTAMENTARY   FORMS 

Concurrent  Wills. 

Concurrent  wills  are  those  which  dispose  of  one's 
property  in  different  jurisdictions.  See  Underbill 
on  Wills,  §  284. 

Forms  like  the  following  may  be  inserted  in 
wills : 

I  expressly  declare  that  this  will  applies  only  to 
my  property,  real  and  personal,  situated  within  the 
United  States  and  the  territorial  jurisdiction  of  the 
United  States.  I  have  already  executed  a  will  of 
my  property  in  Great  Britain,  and  I  hereby  declare 
that  neither  this  will  nor  any  provision  herein  shall 
be  or  shall  be  construed  to  be  a  revocation  of  my 
British  will. 

I  hereby  declare  that  this  will  shall  apply  exclu- 
sively to  my  property,  both  real  and  personal, 
located  hi  the  territory  and  within  the  jurisdiction 
of  the  United  States  and  shall  in  no  event  extend 
and  apply  to  my  property  within  the  limits  and 
jurisdiction  of  France.  I  have  already  disposed  of 
all  my  property  in  France  by  a  will  duly  executed 
according  to  the  laws  of  that  country,  and  I  now 
declare  that  neither  this  will  nor  the  revocation 
hereinafter  expressed  of  former  wills  shall  in  any 
way  extend  to  or  affect  my  said  French  will. 

For  questions  as  to  the  lex  rei  sitae,  see  p.  16. 


DIFFERENT   KINDS   OF   WILLS  143 

Agreement  to  Make   a  Will. 

It  sometimes  happens  that  a  party  for  a  certain 
consideration  agrees  to  make  a  will  in  favor  of  some 
other  party.  Such  a  stipulation  for  the  disposition 
of  one's  property  at  the  time  of  one's  decease  is  held 
to  be  binding.  Howe  v.  Watson,  179  Mass.  30.  If 
the  consideration  is  proper  and  the  agreement  is 
proved,  specific  performance  is  the  general  remedy. 
In  some  places  it  is  provided  by  statute  that  an 
agreement  to  make  a  will  must  be  in  writing,  and 
must  be  signed  by  the  party  whose  estate  it  is 
sought  to  charge.  Such  agreements  are  to  be  dep- 
recated, and  it  is  well  said  relative  to  a  contract 
claimed  to  have  been  entered  into  with  a  person  to 
be  enforced  after  his  death,  to  the  detriment  of  those 
who  would  otherwise  be  entitled  to  the  estate, 
''Contracts  of  the  character  in  question  have  be- 
come so  frequent  in  recent  years  as  to  cause  alarm, 
and  the  courts  have  grown  conservative  as  to  the 
nature  of  the  evidence  required  to  establish  them, 
and  in  enforcing  them,  when  established,  by  specific 
performance.  Such  contracts  are  easily  fabricated 
and  hard  to  disprove,  because  the  sole  contracting 
party  on  one  side  is  always  dead  when  the  question 
arises.  They  are  the  natural  resort  of  unscrupulous 
persons  who  wish  to  despoil  the  estates  of  decedents." 

Hamlin  v.  Stevens,  177  N.  Y.  39,  47. 

. 

Codicils. 

A  codicil  is  an  addition  to  a  will  and,  if  there  are 
no  words  of  revocation,  revokes  the  will  only  in 


144  TESTAMENTARY   FORMS 

the  precise  degree  in  which  it  is  inconsistent  there- 
with. And  it  is  a  prima  facie  rule  of  construction 
that  an  additional  legacy,  given  by  a  codicil,  is 
attended  with  the  same  incidents  and  qualities  as 
the  original  legacy.  Tilden  v.  Tilden,  13  Gray,  103, 
108.  The  will  and  codicil  are  to  be  construed  to- 
gether. Newcomb  v.  Webster,  113  N.  Y.  191. 

Questions  as  to  cumulative  and  substitutional 
gifts  frequently  arise  in  the  case  of  codicils.  If  a 
testator  proposes  to  make  in  his  codicil  a  gift  in 
addition  to  or  in  place  of  the  one  named  in  the  will, 
he  should  state  his  intention  clearly. 

The  following  are  simple  forms: 

Cumulative  and  Substitutional  Gifts. 

Whereas  in  and  by  my  last  will  and  testament  I 
gave  A.  B.  a  legacy  of  five  thousand  dollars,  I  now 
give  hun  a  second  legacy  of  five  thousand  dollars, 
making  ten  thousand  dollars  in  all. 

I  give  A.  B.  a  legacy  of  three  thousand  dollars, 
which  is  in  lieu  of  the  legacy  of  two  thousand  dollars 
given  him  by  the  second  article  of  my  will  dated,  etc. 

All  legacies  in  this  codicil  are  in  addition  to  the 
legacies  given  the  same  legatees  in  my  will  dated,  etc. 
In  other  words  the  legacies  in  this  codicil  are  addi- 
tional and  not  substitutional. 

When  the  codicil  embraces  a  simple  provision  not 
materially  affecting  the  will,  no  question  is  likely  to 


DIFFERENT   KINDS   OF   WILLS  145 

arise;  but  the  fondness  of  testators  for  codicils 
affecting  the  whole  scheme  of  the  will  should  not 
be  encouraged.  It  is  always  safer  to  rewrite  the 
whole  will.  For  embarrassing  questions  which  grew 
out  of  a  will  with  seven  separate  codicils  see  Rich- 
ardson v.  Hall,  124  Mass.  228;  s.  c.  127  Mass.  64. 

If,  however,  the  codicil  has  been  determined  upon, 
the  following  points  may  be  of  service: 

Although  in  all  cases  of  successive  bequests  in  a 
will  it  should  clearly  appear  whether  they  are  in- 
tended to  be  by  way  of  substitution  or  cumulative, 
yet  still  greater  caution  is  necessary  when  they  are 
given  by  different  instruments.  In  such  case  the 
second  is  to  be  treated  as  additional  to  the  first,  in 
the  absence  of  a  different  intention.  Wainwright  v. 
Tuckerman,  120  Mass.  232.  See  forms  just  above. 

The  codicil  should  either  be  written  upon  the  same 
piece  of  paper  with  the  will,  or,  if  on  a  separate  piece, 
the  two  should  be  securely  annexed.  There  is  thus 
less  difficulty  in  settling  the  points,  should  they 
arise,  concerning  reference  to  and  identity  of  the 
other  instrument.  In  the  Goods  of  Terrible,  1  Sw. 
&  Tr.  140;  Allen  v.  Maddock,  11  Moo.  P.  C.  C. 
427.  So  also  there  is  less  probability  of  one  being 
destroyed,  defaced,  or  lost  without  the  other.  Even 
then  the  codicil  should  be  made  so  prominent  as  not 
to  escape  attention.  Waters  v.  Stickney,  12  Allen,  1. 

Care  should  be  exercised  in  appointing  in  the 
codicil  trustees,  executors,  etc.,  in  the  place  of,  or 
in  addition  to,  those  named  in  the  will.  In  the 
Goods  of  Bailey,  L.  R.  1  P.  &  D.  628.  In  such  cases, 


146  TESTAMENTARY   FORMS 

if  the  language  used  is  not  clear,  nice  points  may 
arise  as  to  the  execution  of  powers  of  sale.  See 
Pratt  v.  Rice,  7  Gush.  209. 

The  greatest  care  is  especially  necessary  in  attempt- 
ing to  modify  or  revoke  a  legacy  given  by  the  will. 

"The  word  'will'  does  not  cover  or  embrace  the 
codicil  where  anything  appears  to  show  that  it  was 
not  intended  to  do  so."  Sloane  v.  Stevens,  107 
N.  Y.  122,  127. 

The  commencement  of  a  codicil  may  be  simple,  as 
in  the  following  form: 

Know  all  men  by  these  presents,  That  I,  A.  B., 
of,  etc.,  do  make  this  codicil  to  the  instrument  dated, 
etc.,  and  heretofore  made  public  and  declared  by  me 
as  and  for  my  last  will  and  testament;  and  I  do 
hereby  confirm  and  ratify  said  last  will  and  testa- 
ment in  all  its  provisions  save  as  changed  by  this 
codicil. 

Another  form  is  given  on  p.  508. 


CHAPTER  VIII 

DESCRIPTION  OF  REAL  ESTATE  —  FEE-SIMPLE  —  FEE- 
TAIL— JOINT  TENANCY  — TENANCY  BY  THE  EN- 
TIRETY AND  TENANCY  IN  COMMON  — ESTATE  FOR 
LIFE  OR  FOR  YEARS. 

Description  of  Real  Estate. 

ACCURACY  of  description  is  always  desirable. 
Words  of  locality  are  apt  to  give  rise  to  ambiguity; 
and  also  words  of  occupancy,  as  well  as  general  names 
for  parcels  of  real  estate.  In  all  cases  of  gifts  by 
words  of  general  description  they  should  not  be 
limited  by  subsequent  attempts  at  particular  de- 
scription, unless  such  appears  to  be  the  intention  of 
the  testator.  In  most  jurisdictions  it  is  competent 
to  identify  by  parol  the  subject  matter  of  the  grant. 
While,  therefore,  reasonable  certainty  in  the  de- 
scription of  real  estate  is  all  that  is  necessary,  yet 
enough  care  should  be  taken  to  leave  no  doubt  as 
to  the  testator's  intention. 

An  examination  of  the  authorities  shows  great 
carelessness  in  devising  small  parcels  of  real  estate, 
especially  homesteads.  In  many  cases  the  devises 
are  very  indefinite,  and  it  is  often  difficult  to  deter- 
mine what  land  is  intended  to  be  included  in  the 
devise.  In  country  districts  the  barn  is  often 
located  across  the  street  from  the  homestead.  If 

147 


148  TESTAMENTARY   FORMS 

the  intent  is  to  include  it  in  the  devise,  that  intent 
should  be  clearly  stated.  Mortgages  are  frequent, 
and,  if  they  are  to  be  assumed  by  the  devisees,  that 
intent  should  be  clearly  expressed.  See  p.  91. 

Where  lands  are  situated  in  another  jurisdiction, 
they  should  be  so  described  from  the  deed  that  no 
question  may  arise  as  to  locality  or  identity. 

Fee-Simple. 

While  the  word  "give"  generally  applies  as  well 
to  real  as  to  personal  estate,  yet  in  giving  real  estate 
by  will  the  proper  word  to  use  is  "devise;"  but 
"bequeath"  may  be  used  for  "devise,"  and  the 
term  "residuary  legatee"  may  pass  the  residuum  of 
an  estate,  both  real  and  personal.  Evans  v.  Crosbie, 
15  Sim.  600;  Davenport  v.  Coltman,  9  M.  &  W. 
481. 

A  partial  intestacy  is  not  favored.  Generally  a 
devise  is  construed  to  convey  all  the  estate  the 
testator  could  lawfully  devise  in  the  land  mentioned, 
unless  it  clearly  appears  by  the  will  that  he  intended 
to  convey  a  less  estate.  Hence  the  word  "heirs" 
is  no  longer  necessary  in  most  States  to  give  a  fee. 
But  as  the  testator  may  own  lands  situated  in  a 
jurisdiction  where  the  word  "heirs"  is  indispensable 
for  that  purpose,  it  is  well  to  insert  it,  especially  in 
the  residuary  clause. 

The  reports  abound  in  cases  where  the  courts 
have  had  difficulty  in  determining  whether  it  was 
the  testator's  intention  that  the  devisee  should  take 
for  life  or  in  fee.  These  cases  often  arise  where  the 


FEE-SIMPLE  149 

devise  is  for  life  with  power  to  sell,  which  is  often 
held  to  render  void  any  limitation  over;  so  that  the 
first  taker  has  an  absolute  fee.  This  is  a  favorite 
mode  of  devise  among  testators  of  small  means, 
especially  farmers.  It  originates  in  a  desire  to 
protect  the  widow,  to  whom  the  homestead  is 
devised  for  the  term  of  her  natural  life,  with  power 
to  sell  the  same,  if  necessary,  for  her  support,  with 
gift  over  to  children  or  others  of  whatever  remains 
at  the  time  of  her  decease.  A  few  well-chosen  words, 
clearly  expressing  the  testator's  intention  as  to 
whether  the  devise  is  of  a  life  estate  or  a  fee,  may 
avoid  much  trouble  and  embarrassment. 

A  form  like  the  following  is  probably  free  from 
all  ambiguity: 

I  give  and  devise  to  my  wife,  A.  B.,  and  to  her 
heirs  and  assigns  forever  the  estate  upon  which  we 
now  reside,  a  particular  description  of  which  is  as 
follows  [description].  I  declare  and  direct  that  my 
said  wife  shall  have  the  absolute  control  and  owner- 
ship of  the  said  estate  and  to  this  end  she  may  sell 
the  same  or  any  part  of  the  same  during  her  life, 
as  she  may  see  fit,  and  the  purchaser  shall  take  all 
the  right,  title  and  interest  therein  that  she  is  capable 
of  conveying.  If  at  the  tune  of  my  said  wife's  decease, 
said  estate  or  any  part  thereof  has  not  been  conveyed 
by  her  she  may  devise  the  same  by  will,  as  she  may 
deem  best,  and  the  devisee  shall  take  all  the  right,  title 
and  interest  therein  that  she  is  capable  of  conveying 
or  devising.  If,  at  the  tune  of  the  decease  of  my 


150  TESTAMENTARY   FORMS 

said  wife,  said  estate  or  any  part  thereof  has  not 
been  conveyed  or  devised  by  will  by  her,  then  I 
give  and  devise  the  same  not  so  conveyed  or  devised 
to  my  daughter,  C.  D.,  and  to  her  heirs  and  assigns 
forever.  But  I  particularly  will  and  declare  that  my 
said  daughter,  C.  D.  is  to  have  no  interest  in  or 
control  of  said  estate  or  any  part  thereof,  except  in 
the  event  of  my  said  wife,  A.  B.  failing  to  convey  or 
devise  as  aforesaid,  as  it  is  my  purpose  that  my 
wife's  conveyance  or  devise  is  to  give  the  grantee  or 
devisee  a  full  and  complete  title,  free  from  the  inter- 
ference or  interest  of  my  said  daughter. 

This  work  is  written  upon  the  assumption  that 
the  testator  will  dispose  of  his  entire  estate,  so  that 
no  questions  will  arise  as  to  fixtures  as  between  the 
heir  and  executor.  Similar  questions,  however,  may 
arise  as  between  the  executor  and  the  devisee  of  a 
tenant  in  fee. 

"There  seems  no  doubt  but  that  if,  from  the 
nature  or  condition  of  the  property  devised,  it  is 
apparent  that  the  intention  was  that  the  fixtures 
should  go  along  with  the  freehold  to  the  devisee, 
they  will  pass  to  him,  although  they  are  of  such  a 
sort  that  the  executor  might  have  been  entitled  to 
them  as  against  the  heir."  1  Williams  on  Executors, 
740.  See  Wood  v.  Gaynon,  1  Ambl.  395. 

However,  if  there  are  any  articles  in  the  nature  of 
fixtures  so  annexed  to  the  freehold  as  to  make  it 
doubtful  whether  they  are  personal  or  real  estate, 
the  intention  should  appear  as  to  whether  they  shall 


FEE -SIMPLE  151 

go  to  the  devisee  of  the  estate,  or  be  regarded  as 
personal  property  to  go  to  some  specified  legatee, 
or  fall  into  the  residue  of  the  estate. 

The  following  may  be  used  as  a  form  in  some 
cases : 

I  give  and  devise  to  my  brother,  A.  B.,  the  house 
No.  63,  on  Exeter  Street,  in  said  Chicago,  to  have  and 
to  hold  to  him  and  his  heirs  and  assigns  forever,  a 
more  particular  description  of  the  premises  being 
as  follows  [description].  And  I  hereby  include  in 
this  devise  all  fixtures  of  every  name  and  descrip- 
tion, including  doors,  window  blinds,  shutters,  and 
gas  fixtures,  even  though  capable  of  being  removed 
without  the  slightest  damage  to  the  premises  and 
also  mirrors,  wardrobes,  and  all  other  articles  of 
furniture,  whether  large  or  small,  provided  they  are 
fastened  to  walls  or  floors,  however  lightly  and 
insecurely.  I  am  thus  particular  about  this  devise, 
as  I  have  hereinbefore  given  the  portable  furniture 
in  the  house  to  another  legatee. 

A  devise  to  A.  and  his  heirs  and  assigns  forever, 
and  "in  case  of  his  decease"  to  B.  and  his  heirs  and 
assigns  forever,  gives  A.  an  estate  in  fee,  if  he  sur- 
vives the  testator,  as  the  words  "in  case  of  the 
decease"  are  held  to  mean  death  within  the  life- 
time of  the  testator.  Abbott  v.  Middleton,  7  H.  L. 
Gas.  68,  102;  Briggs  v.  Shaw,  9  Allen,  516. 

In  regard  to  real  estate  subject  to  mortgage,  it  is 
provided  in  some  jurisdictions  that  when  a  testator, 


152  TESTAMENTARY   FORMS 

being  a  mortgagee  of  real  property  or  an  assignee 
of  such  mortgagee,  dies  without  having  foreclosed 
the  right  of  redemption,  the  mortgaged  property 
and  the  debt  secured  thereby  shall  be  personal 
assets  in  the  hands  of  his  executor  or  administrator, 
and  shall  be  administered  and  accounted  for  as 
such;  and  the  executor  or  administrator  shall  have 
the  same  rights  of  entry  and  of  action  under  said 
mortgage  as  the  mortgagee  or  his  assignee.  On 
the  other  hand,  as  we  have  already  seen,  where 
the  real  estate  devised  is  subject  to  a  mortgage 
made  by  the  testator,  the  mortgage  will  be  paid 
out  of  the  testator's  personal  estate,  in  the  absence 
of  a  different  intention  expressed  hi  the  will. 
See  p.  91. 

Land  is  often  devised  charged  by  the  terms  of  the 
will  with  the  payment  of  money  to  a  third  person. 
Generally,  hi  such  case,  the  devisee  takes  an  abso- 
lute estate  and  not  one  upon  condition. 

Examples  are  devising  real  estate  to  A.  on  his 
paying  a  certain  sum  to  B.  out  of  the  estate,  or  the 
expenses  of  the  education  of  C.,  or  giving  D.  his 
support  out  of  the  estate.  This  method  is  fre- 
quently resorted  to  in  the  case  of  small  estates.  It  is 
obvious  that  so  to  charge  the  payment  of  money 
upon  land  in  another  jurisdiction  than  that  of  the 
testator  may  lead  to  trouble.  See  p.  16.  "It  is 
said  in  Hawkins  on  Wills,  294,  that  'if  legacies  are 
given  generally,  and  the  residue  of  the  real  and 
personal  estate  is  afterwards  given  in  one  mass,  the 
legacies  are  a  charge  on  the  residuary  real  as  well 


FEE-SIMPLE  153 

as  the  personal  estate.'  This  rule  is  founded  on  the 
decisions  in  Greville  v.  Browne,  7  H.  L.  Cas.  689,  696, 
697;  Francis  v.  Clemow,  Kay,  435;  Harris  v.  Watkins, 
Kay,  438;  Wheeler  v.  Howell,  3  Kay  &  Johns.  198, 
203;  Cole  v.  Turner,  4  Russ.  376;  and  earlier  English 
cases."  Thayer  v.  Finnegan,  134  Mass.  62,  64. 

Perhaps  devises  of  this  nature  are  not  often  ad- 
visable; but  if  the  testator  desires  so  to  charge  a 
devise,  he  should  bear  in  mind  that  generally  the 
devisee  by  accepting  the  devise  is  personally  bound 
for  the  payment  of  the  sums  charged.  Amherst 
College  v.  Smith,  134  Mass.  543,  546;  Loder  v.  Hat- 
field,  71  N.  Y.  92.  Also  that  the  land  being  likewise 
charged  with  the  payment  of  the  sums  and  legacies, 
a  purchaser  of  the  land  must  see  to  the  application 
of  the  purchase  money,  whenever  the  sums  and 
legacies  are  distinctly  mentioned  in  the  will.  Am- 
herst College  v.  Smith,  supra;  but  not  when  the 
land  is  charged  with  the  payment  of  debts  and  lega- 
cies generally.  Gardner  v.  Gardner,  3  Mason,  218. 

When  real  estate  is  so  charged  with  the  payment 
of  money,  either  in  fixed  sums  or  in  annuities,  pro- 
vision is  made  by  statute  in  some  States  for  the 
sale  thereof,  and  the  appointment  of  a  trustee  or 
the  purchase  of  annuities. 

The  following  forms,  based  on  actual  provisions 
in  wills,  are  not  commendable: 

Charges  on  Real  Estate,  etc. 

I  give,  devise  and  bequeath  all  the  property  and 
estate,  both  real  and  personal,  of  which  I  shall  die 


154  TESTAMENTAKY   FORMS 

seized  and  possessed  and  to  which  I  may  be  entitled 
at  the  time  of  my  decease  and  wherever  the  same 
may  be  situated  unto  my  wife  A.  B.  and  to  her 
heirs  and  assigns  forever;  and  I  direct  that  if  my 
son  C.  D.  attains  the  age  of  twenty-one  years  he 
shall  receive  from  the  estate  so  given  to  my  wife 
the  sum  of  Twenty  Thousand  Dollars,  and,  if  he 
attains  the  age  of  thirty  years,  he  shall  receive  from 
said  estate  another  sum  of  Twenty  Thousand  Dollars. 
While  these  provisions  are  after  the  nature  of  charges 
on  the  above  devise  and  legacy  to  my  wife,  yet  they 
are  not  to  be  regarded  as  a  bar  to  the  distribution  of 
the  entire  estate  to  her  and  she  shall  have  full  power, 
notwithstanding  the  above  provisions  for  my  said 
son,  to  use,  transfer,  exchange,  sell,  mortgage  and 
reinvest  the  entire  estate  given  her  above  as  her 
absolute  property. 

If  my  personal  property  shall  prove  insufficient  to 
pay  the  pecuniary  legacies  given  in  this  will  or  in 
any  codicil  hereto,  whether  such  legacies  are  given 
absolutely  to  the  legatees  or  in  trust,  then  I  direct 
that  the  balance  or  deficit  shall  be  a  charge  upon 
my  real  estate. 

Fee-Tail. 

Estates  in  fee-tail  are  now  known  in  only  a  few 
jurisdictions,  having  been  pretty  generally  abolished 
by  statute.  Where  the  estate  exists  it  is  doubtful 
if  a  testator  can  deprive  it  of  its  essential  incident 
of  being  liable  to  be  barred  by  the  simple  convey- 


FEE-TAIL  155 

ance  in  fee  of  the  tenant  in  tail  and  of  being  liable 
for  the  payment  of  his  debts. 

The  same  words,  which,  applied  to  real  estate,  will 
create  an  estate  tail,  when  applied  to  personal  prop- 
erty, will  give  an  absolute  interest.  Albee  v.  Car- 
penter, 12  Gush.  382.  A  devise  to  one  and  his  issue, 
whether  there  are  or  are  not  issue  of  the  devisee 
living  at  the  date  of  the  will  or  at  any  other  period, 
creates  an  estate  tail.  2  Jarman  on  Wills,  329.  So 
also  a  devise  to  one  and  the  heirs  of  his  body;  or 
to  one  and  his  children,  he  having  no  children  at 
the  time,  it  being  equivalent  to  him  and  his  issue. 
See  Remsen  on  Wills,  151. 

In  some  States  it  is  now  provided  by  statute  that 
in  a  limitation  of  real  or  personal  property  by  in- 
struments in  writing  the  words  "die  without  issue," 
or  "die  without  leaving  issue,"  or  "have  no  issue," 
or  "die  without  heirs  of  the  body,"  or  other  words 
importing  either  a  want  or  failure  of  issue  of  any 
person  in  his  lifetime  or  at  the  tune  of  his  death, 
or  an  indefinite  failure  of  his  issue,  shall,  unless  a 
contrary  intention  appears  by  the  instrument,  mean 
a  want  or  failure  of  issue  in  the  lifetime  or  at  the 
time  of  the  death  of  such  person,  and  not  an  in- 
definite failure  of  his  issue. 

The  rule  in  Shelley's  Case  has  been  abolished  by 
statute  in  most  jurisdictions.  As  to  base  and  con- 
ditional fees,  see  2  Kent  Com.  10,  15. 


156  TESTAMENTARY   FORMS 

Joint  Tenancy,  Tenancy  by  the  Entirety,  and  Tenancy  in 
Common. 

"It  becomes  important  to  determine  whether  the 
beneficiaries  take  as  joint  tenants  or  as  tenants  hi 
common,  and  if  in  common  whether  as  individuals 
or  as  a  class.  If  they  take  as  joint  tenants,  whether 
as  individuals  or  as  a  class,  the  rule  of  survivorship 
peculiar  to  estates  hi  joint  tenancy  gives  all  to  the 
survivors  in  any  case.  But  if  the  gift  is  to  the  in- 
dividuals as  tenants  in  common,  and  one  dies  before 
the  testator,  or  afterwards  before  the  gift  vests,  and 
the  statutes  to  avoid  lapse  do  not  save  it  to  his 
heirs  or  representatives,  it  does  not  go  to  the  sur- 
viving donees,  but  to  the  residuary  legatees  if  per- 
sonalty, to  the  heirs  of  the  testator  if  land.  On  the 
other  hand,  if  the  donees  take  as  a  class,  though  as 
tenants  hi  common,  and  one  dies  under  such  cir- 
cumstances, no  part  of  the  gift  fails,  but  the  sur- 
vivors take  the  whole.  When  the  persons  to  take 
are  named,  and  there  is  no  other  sufficient  designa- 
tion of  them,  they  must  of  necessity  take  as  individ- 
uals, and  it  is  not  material  that  they  do  not  in  fact 
constitute  a  class.  On  the  other  hand,  if  the  persons 
to  take  can  be  ascertained  only  by  inquiring  who 
answer  a  general  description,  there  being  no  other 
sufficient  designation  of  them,  they  necessarily  take 
as  a  class,  and  those  who  take  take  all."  Rood  on 
Wills,  §  479.  A  gift  to  a  husband  and  wife  concur- 
rently is  regarded  at  common  law  as  conferring  an 
estate  by  the  entirety,  so  that  on  the  death  of  either 
the  survivor  succeeds  to  the  whole  estate.  This  is 


JOINT   TENANCY  157 

now  quite  generally  modified  by  statute  and  is  the 
law  in  only  a  few  jurisdictions. 

In  some  States  it  is  provided  by  statute  that  a 
conveyance  or  devise  of  land  to  two  or  more  persons, 
or  to  husband  and  wife,  except  a  mortgage  or  a  de- 
vise or  conveyance  in  trust,  shall  create  an  estate  in 
common  and  not  in  joint  tenancy,  unless  it  is  ex- 
pressed in  such  conveyance  or  devise  that  the  grantees 
or  devisees  shall  take  jointly,  or  as  joint  tenants,  or 
in  joint  tenancy,  or  to  them  and  the  survivor  of  them, 
unless  it  manifestly  appears  from  the  tenor  of  the 
instrument  that  it  was  intended  to  create  an  estate 
in  joint  tenancy.  Whatever  may  have  sometimes 
been  held  in  regard  to  certain  common-law  convey- 
ances, it  has  ever  been  considered  a  settled  rule  in 
the  construction  of  a  will  that  where  a  testator  gives 
to  two  or  more  property  real  or  personal,  "equally 
to  be  divided,"  or  "share  and  share  alike,"  or  "in 
equal  shares,"  or  other  equivalent  expressions  indi- 
cating an  intent  that  the  objects  of  his  bounty  shall 
have  their  respective  shares  of  the  entire  thing 
granted,  this  shall  be  deemed  a  tenancy  in  common, 
and  not  a  joint  tenancy,  unless  there  be  other  ex- 
press provisions,  showing  a  clear  intention  on  the 
part  of  the  testator  that  they  shall  take  as  joint 
tenants,  or  that  the  survivor  shall  take  the  whole. 
Bac.  Abr.,  Joint  Tenants,  F.  Two  corporations 
"cannot  be  joint  tenants.  If  they  jointly  own  land, 
they  are  tenants  in  common  of  the  same."  1  Wash- 
burn,  Real  Property  (5th  ed.),  676.  "By  the  rule 
of  the  common  law,  as  settled  in  many  cases,  when 


158  TESTAMENTARY   FORMS 

a  legacy  is  given  to  two  or  more  persons,  and  there 
are  no  words  of  severance  of  the  interests,  the  lega- 
tees will  take  as  joint  tenants,  unless  from  the  whole 
will  a  contrary  intention  is  indicated."  Tillinghast 
v.  Cook,  9  Met.  143,  146. 

Estates  in  joint  tenancy  are  not  frequent,  the 
chief  characteristic  being  survivorship.  Hence  there 
is  neither  dower  nor  curtesy  in  such  estates,  and  the 
interest  cannot  pass  by  will  unless  the  testator  sur- 
vive his  co-proprietor.  Estates  in  common  are  fre- 
quent and  are  productive  of  friction  and  litigation. 
The  disposition  of  co-owners  to  disagree  is  aggravated 
by  questions  relating  to  use  and  occupation,  rent,  ac- 
counting, taxes,  repairs  and  improvements,  incum- 
brances,  attachments  and  levying  executions,  waste, 
crops  and  profits,  dower  and  curtesy,  etc.  Parti- 
tion is  expensive  and  frequently  unsatisfactory,  and 
additional  difficulties  are  often  imposed  by  the  death 
of  a  co-tenant  and  the  taking  of  his  place  by  his  heirs 
or  devisees. 

If  these  matters  are  brought  to  the  attention  of  a 
testator,  not  only  in  the  case  of  a  specific  devise  but 
in  the  case  of  the  residue  given  to  more  than  one 
devisee,  he  may  see  fit  to  make  provision  so  as  to 
avoid  any  owning  in  common. 

As  to  powers  of  sale  given  to  trustees  as  joint  ten- 
ants, see  p.  336.  As  to  the  duties  of  trustees  in  con- 
veying real  estate  to  remaindermen  as  tenants  in 
common,  see  p.  440. 


ESTATE    FOR   LIFE    OR   FOR   YEARS  159 

Estate  for  Life  or  for  Years. 
As  to  Real  Estate. 

In  most  jurisdictions  the  rule  in  Shelley's  Case  is 
abolished,  and  it  is  provided  that  if  land  is  granted  or 
devised  to  a  person,  and  after  his  death  to  his  heirs 
in  fee,  however  the  grant  or  devise  is  expressed,  an 
estate  for  life  only  shall  vest  hi  such  first  taker 
and  a  remainder  in  fee-simple  hi  his  heirs.  See 
p.  155. 

As  already  seen,  it  is  sometimes  difficult  to  deter- 
mine whether  a  power  of  sale  given  to  a  life  tenant 
renders  any  limitation  over  void.  See  p.  148.  If 
it  is  intended  in  such  case  that  the  first  taker  shall 
have  power  to  mortgage  as  well  as  sell,  such  inten- 
tion should  clearly  appear. 

In  many  places  by  statute  a  life  tenant  may  be 
taxed  as  the  owner  of  land. 

Often  it  may  be  well  to  bring  to  the  attention  of  a 
testator  the  fact  that  damages  may  be  assessed  to 
the  property  of  life  tenant  and  remainderman  in 
case  of  laying  out  and  discontinuance  of  ways.  In 
some  jurisdictions  a  life  tenant  is  authorized  to  re- 
move fixtures.  While  a  testator  may  provide  that 
debts  and  legacies  shall  be  charged  upon  a  life  estate, 
or  that  charges  may  be  made  upon  rents,  yet  such 
provisions  are  plainly  not  advisable.  See  Fearing  v. 
Swift,  97  Mass.  413;  Nudd  v.  Powers,  136  Mass. 
273. 

Testators  sometimes  empower  life  tenants  to  make 
leases,  and  there  are  statutory  provisions  upon  the 


160  TESTAMENTARY   FORMS 

subject  in  some  States.    It  is  evident  that  the  exe- 
cution of  such  a  power  is  a  delicate  matter  and  is 
only  advisable  in  special  cases. 
The  following  is  offered  as  a  form: 

I  hereby  authorize  and  empower  every  life  tenant 
under  this  will  to  lease  the  premises  devised  to  him 
for  life  or  any  part  thereof  for  the  term  of  five  years 
or  any  less  period  from  the  date  of  the  lease,  irrespec- 
tive of  any  consent  of  the  remaindermen,  each  lease 
to  provide  for  the  payment  of  rent  to  the  tenant  for 
life  and  after  his  decease,  if  he  dies  before  the  ter- 
mination of  the  lease,  then  to  the  remaindermen, 
and  to  contain  reasonable  covenants,  among  others, 
for  the  removal  of  improvements  by  or  the  payment 
for  the  same  to  the  lessees,  provided  the  rent  is  duly 
paid. 

As  to  Personal  Property. 

While  personal  property  may  be  given  to  one  for 
life  with  remainder  to  another  absolutely,  yet  it  is  a 
fixed  rule  of  law  that  personal  property  cannot  be 
given  to  one  in  tail  with  remainder  over. 

A  bequest  of  the  use  of  money  to  one  for  life  and 
then  over  is  a  gift  of  the  interest  only,  and  not  an 
absolute  gift  of  the  principal.  Field  v.  Hitchcock, 
17  Pick.  182.  Where  one  is  given  for  his  life  the  use 
of  things  which  are  necessarily  consumed  by  their 
use,  the  gift  is  absolute  and  the  limitation  over  is 
void.  Merrill  v.  Emery,  10  Pick.  507,  512. 

It  is  a  general  rule  that  words  which  give  a  fee  in 


ESTATE    FOR   LIFE    OR   FOR    YEARS  161 

real  estate  will  give  an  absolute  property  in  personal 
estate. 

Ordinarily,  an  unqualified  gift  of  the  use,  income, 
and  improvement  of  personal  estate  vests  an  abso- 
lute interest.  Hatch  v.  Bassett,  52  N.  Y.  359; 
Chase  v.  Chase,  132  Mass.  473. 

"The  doctrine  is  well  settled,  that  if  a  legacy  is 
given  generally,  but  subject  to  a  limitation  over 
upon  a  subsequent  event,  the  divesting  contingency 
will  not  prevent  the  legatee  from  receiving  his  legacy 
at  the  end  of  the  year  from  the  testator's  death.  Se- 
curity is  required  in  such  cases  only  when  it  is  shown 
to  the  court  that  there  is  danger  that  the  property 
will  be  wasted,  secreted,  or  removed  by  the  first  taker. 
Homer  v.  Shelton,  2  Met.  194;  Fawkes  v.  Gray,  18 
Ves.  131;  2  Williams  on  Executors,  1192."  Fiske 
v.  Cobb,  6  Gray,  144,  146.  The  above  method  is  not 
one  to  be  encouraged;  and  it  is  evident  that  if  it  is 
the  intention  of  the  testator  that  the  first  taker 
should  not  have  the  possession  of  the  property, 
provision  should  be  made  for  a  trustee. 

The  following  form,  taken  from  an  actual  will,  is 
of  the  kind  to  be  avoided: 

I  give  to  my  daughter,  A.  B.,  for  and  during  her 
natural  life,  the  possession,  control,  management,  use, 
income  and  profits  of  the  securities  and  bonds  men- 
tioned and  described  [in  a  schedule]  so  that  she  shall 
be  entitled  to  receive  and  apply  to  her  own  use, 
during  her  natural  life  only,  the  entire  income  of  the 
said  securities  and  bonds,  and  I  direct  that  my  said 


162  TESTAMENTARY   FORMS 

daughter  shall  not  be  required  to  give  any  inventory 
thereof,  nor  any  security  for  the  safe  keeping  or  pres- 
ervation of  the  same.  Upon  the  death  of  my  said 
daughter,  leaving  issue  her  surviving,  I  give  and 
bequeath  the  said  securities  and  bonds,  or  any  se- 
curities or  property,  into  which  the  same  may  have 
been  converted,  unto  such  issue,  if  more  than  one, 
share  and  share  alike,  the  issue  of  any  deceased  child 
to  take  per  stirpes  and  not  per  capita. 

To  give  a  life  interest  in  a  residue  or  in  the  testa- 
tor's entire  estate  without  creating  a  trust  and  ap- 
pointing a  trustee  is  not  as  a  rule  advisable. 

For  example,  a  provision  like  the  following  is 
extremely  unwise: 

I  give  and  devise  to  A.  B.  all  the  rest,  residue  and 
remainder  of  my  estate,  both  real  and  personal  and 
wherever  the  same  may  be  situated,  to  have  and  to 
hold  the  same  for  and  during  the  term  of  his  natural 
life  and  upon  his  decease  to  C.  D.  to  have  and  to  hold 
the  same  to  him  and  his  heirs  and  assigns  forever. 


CHAPTER  IX 

CONDITIONS  PRECEDENT  AND  SUBSEQUENT— VESTED 
AND  CONTINGENT  REMAINDERS  —  EXECUTORY  DE- 
VISES AND  PERPETUITIES 

Conditions  Precedent  and  Subsequent. 

THERE  are  many  decisions  upon  conditions  and 
the  results  are  often  far  from  satisfactory.  Some  form 
of  conditional  limitation  is  generally  preferable,  al- 
though it  is  to  be  noted  that  the  rule  against  per- 
petuities does  not  apply  to  a  right  of  entry  for  a 
breach  of  condition  subsequent.  Sugd.  Vend.  (14th 
ed.)  596;  Cowell  v.  Springs  Co.,  100  U.  S.  55. 

"No  precise  form  of  words  is  necessary,  in  order 
to  create  conditions  in  wills;  any  expression  disclos- 
ing the  intention  will  have  that  effect."  2  Jarman 
on  Wills,  841.  Nevertheless  apt  language  should  be 
used.  "Different  words  are  required  for  the  creation 
of  a  condition  and  a  limitation  respectively  >  The 
use  of  the  following  words  in  a  will  or  deed  make  a 
condition:  Upon  condition;  provided  always;  so  that; 
that  if  it  happen;  and  the  following  words  if  used  in  a 
will,  will  create  a  condition,  though  not  if  they 
occurred  in  a  deed:  that  he  shall  do;  on  his  doing; 
with  that  intention;  to  the  effect;  for  the  purpose.  Proper 
words  of  limitation  are:  while;  so  long  as;  until;  pro- 
vided that;  so  that;  as  long  as;  wheresoever;  as  far  as; 

163 


164  TESTAMENTARY   FORMS 

up  to;  so  long.  We  thus  see  that,  while  acts  generally 
form  the  essence  of  a  condition,  time  generally  forms 
that  of  a  limitation;  and  the  exact  difference  between 
these  terms  is  well  expressed  by  saying  that  the  for- 
mer is  damnum  datum,  whereas  the  latter  is  merely 
lucrum  cessans."  Flood  on  Wills,  448.  "If  the  lan- 
guage of  the  particular  clause,  or  of  the  whole  will, 
shows  that  the  act  on  which  the  estate  depends  must 
be  performed  before  the  estate  can  vest,  the  condi- 
tion is  of  course  precedent;  and  unless  it  be  performed 
the  devisee  can  take  nothing.  If,  on  the  contrary, 
the  act  does  not  necessarily  precede  the  vesting  of  the 
estate,  but  may  accompany  or  follow  it,  if  this  is 
to  be  collected  from  the  whole  will,  the  condition 
is  subsequent."  Marshall,  C.  J.,  in  Finlay  v.  King, 
3  Pet.  346,  375. 

A  provision  that  upon  a  breach  of  the  condition 
the  property  shall  revert  to  the  testator's  estate, 
creates  a  condition  simply;  but  if  it  is  further  pro- 
vided that  it  shall  be  disposed  of  under  the  will  as 
if  no  original  devise  upon  condition  had  been  made, 
a  conditional  limitation  is  created.  Society  for  Pro- 
moting Education  v.  Attorney-General,  135  Mass. 
285,  287,  288. 

Generally,  when  a  condition  precedent  becomes 
impossible  to  be  performed,  even  though  there  be 
no  default  or  laches  on  the  part  of  the  devisee  himself, 
the  devise  fails.  2  Jarman  on  Wills,  12. 

"If  the  condition  subsequent  be  possible  at  the 
time  of  making  it,  and  becomes  afterwards  impos- 
sible to  be  complied  with,  either  by  the  act  of  God, 


CONDITIONS  PRECEDENT  AND  SUBSEQUENT   165 

or  of  the  law,  or  of  the  grantor;  or  if  it  be  impossible 
at  the  time  of  making  it,  or  against  law,  the  estate 
of  the  grantee,  being  once  vested,  is  not  thereby 
devested,  but  becomes  absolute."  4  Kent  Com. 
130. 

A  condition  precedent  must  be  performed  within 
a  reasonable  time,  when  no  time  is  fixed  for  its  per- 
formance, it  being  dependent  upon  the  will  of  the 
legatee.  Drew  v.  Wakefield,  54  Me.  291.  And  the 
same  rule  applies  to  a  condition  subsequent.  Ross 
v.  Tremain,  2  Met.  295.  "Every  condition  to  defeat 
an  estate  must  be  construed  strictly."  Hadley  v. 
Hadley  Manfg.  Co.,  4  Gray,  140,  145.  "There  is 
a  further  distinction  hi  the  nature  of  estates  on  con- 
dition, and  those  created  by  conditional  limitation, 
which  it  may  be  material  to  notice.  Where  an  estate 
in  fee  is  created  on  condition,  the  entire  interest 
does  not  pass  out  of  the  grantor  by  the  same  instru- 
ment or  conveyance.  All  that  remains,  after  the  gift 
or  grant  takes  effect,  continues  in  the  grantor,  and 
goes  to  his  heirs.  This  is  the  right  of  entry,  as  we 
have  already  seen,  which,  from  the  nature  of  the 
grant,  is  reserved  to  the  grantor  and  his  heirs  only, 
and  which  gives  them  the  right  to  enter  as  of  their 
old  estate,  upon  the  breach  of  the  condition.  This 
possibility  of  reverter,  as  it  is  termed,  arises  in  the 
grantor  or  devisor  immediately  on  the  creation  of 
the  conditional  estate.  It  is  otherwise  where  the 
estate  in  fee  is  limited  over  to  a  third  person  in  case 
of  a  breach  of  the  condition.  Then  the  entire  estate, 
by  the  same  instrument,  passes  out  of  the  grantor  or 


166  TESTAMENTARY   FORMS 

devisor.  The  first  estate  vests  immediately,  but  the 
expectant  interest  does  not  take  effect  until  the  hap- 
pening of  the  contingency  upon  which  it  was  limited 
to  arise.  But  both  owe  their  existence  to  the  same 
grant  or  gift;  they  are  created  uno  flatu;  and  being 
an  ultimate  disposition  of  the  entire  fee,  as  well  after 
as  before  the  breach  of  the  condition,  there  is  nothing 
left  in  the  grantor  or  devisor  or  his  heirs.  The  right 
or  possibility  of  reverter,  which,  on  the  creation  of 
an  estate  in  fee  on  condition  merely,  would  remain  in 
him,  is  given  over  by  the  limitation  which  is  to  take 
effect  on  the  breach  of  the  condition."  Brattle 
Square  Church  v.  Grant,  3  Gray,  142,  147. 

It  is  not  intended  to  treat  the  subject  of  condi- 
tions at  length  but  to  call  attention  to  some  of  the 
important  points  and  subjects. 

1.   PAYMENT  OP  LEGACIES. 

Where  the  time  of  payment  is  postponed,  the 
testator  should  clearly  indicate  whether  the  legacy 
is  to  vest  immediately  upon  his  decease,  or  whether 
time  is  to  be  annexed  to  the  substance  of  the  gift,  as 
a  condition  precedent. 

In  most  cases,  perhaps,  it  would  be  better  to  create 
an  absolute  trust;  but  if  the  testator  does  not  prefer 
to  do  this,  he  should  make  the  matter  of  vesting  so 
clear  that  no  question  may  arise  as  to  the  disposition 
of  the  legacy,  if  the  legatee  dies  before  the  arrival  of 
the  time  when  the  legacy  is  to  be  paid  to  him.  If 
the  legatee  dies  before  that  time  and  the  provisions 
of  the  will  are  not  clear,  the  question  often  is  whether 


CONDITIONS  PRECEDENT  AND  SUBSEQUENT   167 

the  legacy  falls  into  the  residuum  of  the  testator's 
estate  or  is  so  vested  as  to  pass  to  the  legatee's 
administrator  or  executor. 

The  following  are  offered  as  forms : 

Payment  of  Legacies  on  Condition. 

I  give  to  my  son  A.  B.  the  sum  of  ten  thousand 
dollars,  to  be  paid  to  him  at  the  time  of  my  decease, 
if  he  shall  then  have  arrived  at  the  age  of  twenty-one 
years;  if  he  shall  not  then  be  twenty-one  years  old, 
the  same  to  be  paid  to  him  when  he  shall  attain  that 
age.  I  also  give  to  him  the  sum  of  ten  thousand 
dollars  to  be  paid  to  him  when  he  shall  attain  the 
age  of  twenty-five  years  and  a  further  sum  of  ten 
thousand  dollars,  to  be  paid  to  him  when  he  shall 
attain  the  age  of  thirty  years.  I  particularly  declare 
that  all  the  above  legacies  are  to  vest  in  my  said 
son  at  the  time  of  my  death  and  that  only  the  time 
of  payment  is  postponed  until  he  shall  reach  the 
ages  respectively  prescribed. 

I  give  to  my  son  A.  B.  the  sum  of  five  thousand 
dollars  to  be  paid  to  him  when  he  is  twenty-five  years 
of  age.  This  legacy  is  to  vest  in  the  said  A.  B.  at  the 
time  of  my  decease. 

I  give  to  A.  B.  a  legacy  of  five  thousand  dollars 
to  be  paid  to  him  when  he  arrives  at  the  age  of 
twenty-one.  If  he  die  before  that  tune,  then  this 
legacy  of  five  thousand  dollars  shall  fall  into  and 
become  a  part  of  my  residuary  estate. 


168  TESTAMENTARY   FORMS 

In  the  above  cases  it  would  probably  be  the  duty 
of  the  executor  to  retain  the  money  and  finally  pay 
it  over  as  directed.  Sometimes  conditions  as  to 
approval  are  imposed,  as  in  the  following  forms: 

Conditions  as  to  Approval. 

I  give  my  nephew  A.  B.,  the  sum  of  one  thousand 
dollars  to  be  safely  invested  and  paid  to  him  with 
interest  upon  his  attaining  the  age  of  twenty-five 
years,  provided  that  my  executor  regards  him  at 
that  tune  as  worthy  to  receive  the  same.  Otherwise 
I  direct  my  said  executor  to  pay  the  said  sum  with 
interest  to  the  Little  Wanderers'  Home  of,  etc. 

I  give  my  grandson  A.  B.  the  sum  of  Five  Thou- 
sand Dollars  to  be  prudently  invested  by  my  exec- 
utor and  paid  by  him  with  accrued  interest  to  the 
said  A.  B.,  on  his  reaching  the  age  of  thirty  years, 
provided  that  his  father,  my  son  C.  D.,  shall  hi  his 
discretion,  approve  in  writing  of  such  payment  at 
that  time.  If  he  does  not  so  approve  in  writing 
at  that  tune,  then  I  direct  my  said  executor  to 
pay  said  Five  Thousand  Dollars  with  accrued 
interest  to  E.  F.,  the  sister  of  C.  D.  to  be  hers 
absolutely. 

Courts  favor  the  vesting  of  legacies;  but  if  a 
testator  really  intends  that  a  devise  shall  be  upon 
condition  precedent,  as,  for  example,  a  devise  to  a 
son  upon  condition  precedent  that  he  attain  to  the 
age  of  thirty  years,  provision  should  be  made  as 


CONDITIONS  PRECEDENT  AND  SUBSEQUENT   169 

to  the  disposition  of  rents  and  profits  between  the 
death  of  the  testator  and  the  vesting  of  the  estate; 
and  also  as  to  the  preservation  of  the  estate  in 
case  the  devisee  die  before  attaining  the  required 
age. 

"Whilst  estates  remain  contingent,  those  in  whom 
they  are  at  a  future  time  to  be  vested,  have  no  in- 
terest in  the  estates,  or  the  rents  and  profits  of  such 
estates.  Such  estates  must  descend  to  the  heir,  if 
they  are  not  given  to  any  person  to  hold  until  the 
events  happen,  on  which  they  are  to  become  vested. 
.  .  .  Testators  who  create  contingent  estates  often 
forget  to  make  any  provision  for  the  preservation  of 
their  estates,  and  for  the  disposition  of  the  rents 
and  profits  in  the  intermediate  period,  between  their 
deaths  and  the  vesting  of  their  estates.  In  such 
cases,  the  estates  descend  to  the  heirs,  who,  know- 
ing that  they  are  to  enjoy  them  only  for  a  short 
period,  and  that  they  have  obtained  the  possession 
of  them  from  the  inattention  of,  and  not  from  the 
bounty  of  the  testator,  or  from  the  mistake  of 
the  professional  man  who  drew  the  will,  will  make 
the  most  that  they  can  of  them  during  the  time  that 
they  remain  theirs,  regardless  of  any  injury  that  the 
estates  may  suffer  from  their  conduct."  Duffield  v. 
Duffield,  3  Bligh,  N.  s.  260,  330.  In  such  case  it  is 
advisable  to  provide  for  an  intermediate  estate  for 
years  or  to  create  a  trust. 

If  such  a  devise  without  a  trustee  is  determined 
upon,  forms  like  the  following  may  be  used : 


170  TESTAMENTARY   FORMS 

Devises  without  a  Trustee. 

I  give  and  devise  the  lot  of  land  of  about  one  acre 
upon  the  north  east  corner  of  A.  and  B.  streets  in 
the  city  of  etc.,  and  the  house  located  on  said  lot 
to  my  son  C.  D.  upon  his  attaining  the  age  of  twenty- 
one  years.  I  intend  this  as  an  absolute  devise  to 
him  and  his  heirs  and  assigns  forever.  If  he  be 
under  twenty-one  years  of  age  at  the  time  of  my 
decease  then  I  give  my  brother  E.  F.  the  use  and 
improvement  of  said  house  and  lot  until  my  said 
son  attains  his  majority,  with  the  privilege  of  rent- 
ing or  occupying  the  same,  as  he  may  deem  best, 
provided  that  during  his  ownership  he  keeps  the 
premises  reasonably  insured  for  his  benefit  and  that 
of  my  said  son  A.  B.  as  their  interests  may  appear, 
and  pays  all  taxes  and  similar  assessments  and 
makes  good  all  depreciation. 

I  give  and  devise  my  farm  of  sixty  acres  and  the 
buildings  thereon  to  my  son  A.  B.  upon  his  reach- 
ing the  age  of  thirty  years.  Said  farm  is  located  in 
the  town  of  etc.,  and  is  bounded  and  described  as 
follows  [description].  It  is  my  intention  that  the 
title  to  said  farm  shall  vest  absolutely  in  my  said 
son  A.  B.  and  I  hereby  give  and  devise  the  same  to 
him  and  his  heirs  and  assigns  forever.  If  he  be 
under  thirty  years  of  age  at  the  time  of  my  decease, 
then  I  give  his  mother  C.  D.  the  use  and  improve- 
ment, of  said  farm  until  he  arrives  at  said  age  of 
thirty  years,  with  the  privilege  of  occupying  the 
house  and  cultivating  and  running  the  farm.  I 


CONDITIONS  PRECEDENT  AND  SUBSEQUENT   171 

desire  her  during  that  period  to  keep  the  buildings 
insured,  pay  all  taxes  and  make  good  all  deprecia- 
tion of  the  buildings.  It  is  my  hope  and  wish  that 
my  son  may  live  with  his  mother  and  assist  in  the 
cultivation  and  management  of  the  farm. 


2.  DEVISES  CHARGED  WITH  THE  PAYMENT  OF 
LEGACIES  OR  THE  EXPENSES  OF  ONE'S  EDUCATION. 

We  have  already  seen  that,  if  land  is  devised 
charged  by  the  terms  of  the  will  with  the  payment 
of  money  to  a  third  person,  generally  the  devisee 
takes  an  absolute  estate  and  not  one  upon  condi- 
tion. See  p.  152. 

Perhaps  it  is  better  in  most  cases  where  the  testa- 
tor desires  to  provide  for  the  education,  mainte- 
nance and  support  of  others,  to  create  a  trust.  See 
p.  406.  If,  however,  it  is  intended  that  the  devise 
shall  be  upon  condition  subsequent,  the  language 
used  should  clearly  express  that  intention.  It  is  a 
general  rule  that  if  a  testator  creates  a  charge  upon 
the  devisee  personally  in  respect  of  the  estate  de- 
vised, he  takes  it  upon  that  condition,  and  becom- 
ing thus  subject  to  the  burden  imposed,  he  acquires 
thereby,  and  without  words  of  limitation,  an  estate 
of  inheritance  by  necessary  implication;  and  this 
on  the  principle  that  otherwise,  what  must  legally 
be  considered  as  having  been  intended  as  a  benefit, 
might  justly  be  changed  into  a  positive  disadvantage 
and  loss.  4  Kent  Com.  540;  6  Cruise  Dig.  tit.  38, 
c.  11,  §§  65  et  seq. 


172  TESTAMENTARY  FORMS 

3.   LEGACY  TO  AN  EXECUTOR  OR  A  TRUSTEE. 

If  the  will  contains  a  gift  to  an  executor  or  trustee 
eo  nomine,  his  qualifying  and  acting  as  such  is  an 
implied  condition  precedent  to  the  gift. 

This  is  very  important;  for  if  the  gift  is  intended 
as  a  mark  of  personal  regard,  to  be  paid  to  the  ex- 
ecutor or  trustee  independently  of  his  accepting 
and  qualifying  as  such,  that  intention  should  be 
expressed. 

"The  authorities  cited  fully  sustain  the  position 
taken  by  the  residuary  legatees,  that,  when  be- 
quests are  made  to  individuals  in  the  character  of 
trustees  or  executors,  and  not  as  marks  of  personal 
regard  only,  the  legacies  are  held  to  be  given  on  an 
implied  condition,  namely,  that  the  persons  named 
clothe  themselves  with  the  character  in  respect  of 
which  the  benefits  were  intended  for  them.  It  is 
also  an  established  rule  that  bequests  to  individuals 
who  are  executors  are  considered  prima  facie  to  be 
given  to  them  in  that  character;  a  presumption  to 
be  repelled  by  the  nature  of  the  legacies,  or  other 
circumstances  arising  in  the  will.  Roper  on  Lega- 
cies, 780;  Slaney  v.  Watney,  Law  Rep.  2  Eq.  418. 
It  is  so,  even  if  the  persons  are  described  in  the 
legacy  as  'my  good  friends';  Read  v.  Devaynes,  3 
Bro.  Ch.  95;  or  if  the  legacy  is  given  in  the  will 
among  other  legacies;  Calvert  v.  Sebbon,  4  Beav. 
222;  or  if  it  is  given  in  a  codicil  naming  the  person 
as  an  individual,  and  not  naming  his  office.  Stack- 
pole  v.  Howell,  13  Ves.  417."  Kirkland  v.  Narra- 
more,  105  Mass.  31,  32. 


CONDITIONS  PRECEDENT  AND  SUBSEQUENT   173 

The  following  forms  are  believed  to  cover  most 
cases  which  are  likely  to  arise: 

Legacies  to  Executors  or  Trustees. 

I  give  and  bequeath  to  A.  B.  the  executor  of  this 
will  the  sum  of  Ten  Thousand  Dollars  as  an  expres- 
sion of  friendship  and  esteem  or  in  other  words  this 
legacy  is  to  be  paid  to  him  in  any  event  and  is  not 
dependent  upon  his  qualifying  as  executor  of  this 
will  in  the  probate  court.  He  is  to  receive  for  his 
services  as  executor  such  compensation  in  addition 
to  the  legacy  as  the  court  may  allow. 

I  give  to  A.  B.  a  legacy  of  Five  Thousand  Dollars 
to  be  paid  to  him  only  in  the  event  of  his  qualifying 
as  executor  of  this  will.  If  he  should  die  before  his 
duties  as  executor  are  fully  discharged,  then  the 
legacy,  if  not  collected,  shall  be  paid  to  his  estate. 
He  shall  be  entitled  in  addition  to  this  legacy  to 
such  compensation  for  his  services  as  executor  as  is 
usual  and  proper. 

I  give  A.  B.  and  C.  D.,  the  executors  of  this  will, 
each  a  legacy  of  Ten  Thousand  Dollars  to  be  paid 
to  them  only  in  the  event  of  their  qualifying  as  ex- 
ecutors of  this  will  and  to  be  received  by  them  in 
full  satisfaction  of  all  claims  they  may  have  against 
my  estate  for  their  services  as  executors.  If  either 
of  them  shall  die  before  the  estate  is  entirely  settled, 
and  the  legacy  has  not  been  paid  to  him,  then  it 
shall  be  paid  to  his  legal  representatives;  and  the 


174  TESTAMENTARY   FORMS 

survivor  shall  continue  to  act  as  sole  executor  until 
my  estate  is  settled. 

I  give  A.  B.,  the  trustee  under  this  will,  a  legacy 
of  Three  Thousand  Dollars,  as  a  mark  of  my  esteem, 
and  this  legacy  is  to  be  paid  to  him  whether  he  does 
or  does  not  qualify  in  the  probate  court  as  trustee. 

I  give  and  bequeath  the  sum  of  Two  Thousand 
Dollars  to  A.  B.,  whom  I  have  already  appointed 
trustee  under  this  will,  and,  as  the  trust  estate  is  a 
small  one  and  the  trust  will  terminate  in  a  few 
years,  I  give  him  this  legacy  only  on  the  conditions 
that  he  qualifies  as  trustee  and  makes  no  charge  for 
his  services  during  the  continuance  of  the  trust. 

The  legacies  to  executors  and  trustees  named  in 
this  will  are  not  dependent  upon  any  condition,  but 
are  to  be  paid  to  them  even  if  they  should  decline 
their  trusts  and  fail  to  qualify  either  as  executors 
or  trustees  hi  the  Probate  Court. 

Other  forms  are  given  on  pp.  503,  513. 

4.   RESTRAINT  OF  MARRIAGE. 

The  origin  and  history  of  the  common  and  canon 
law  in  respect  to  gifts  in  restraint  of  marriage  are 
reviewed  in  Chapin  v.  Cooke,  73  Conn.  72.  As  a 
rule,  a  condition  subsequent  in  a  will  in  general  re- 
straint of  the  marriage  of  a  legatee  is  against  public 
policy  and  is  void.  A  gift  by  will  of  the  testator's 


CONDITIONS  PRECEDENT  AND  SUBSEQUENT   175 

entire  estate  to  his  wife  "so  long  as  she  remains  my 
widow"  with  no  other  disposition  thereof  in  the 
event  of  her  marrying  again,  was  held  not  invalid  as 
being  in  restraint  of  marriage  in  Knight  v.  Mahoney, 
152  Mass.  523.  "We  are  of  the  opinion,  therefore, 
that  the  daughter's  marriage  without  the  consent  of 
her  mother,  was  a  breach  of  the  condition.  The 
consent  of  the  executor  alone  was  not  sufficient. 
The  testator  required  the  consent  of  both  the  mother 
and  the  executors."  Hogan  v.  Curtin,  88  N.  Y.  162, 
170. 

As  a  rule,  it  is  safer  not  to  make  the  gift  dependent 
upon  an  absolute  condition,  but  to  limit  it  over 
to  another  upon  the  marriage  of  the  first  taker. 
Stivers  v.  Gardner,  88  Iowa,  307;  Bostick  v.  Blades, 
59  Md.  231;  Green  v.  Hewitt,  97  111.  113;  Overton  v. 
Lea,  108  Tenn.  505. 

The  following  forms  may  be  used: 

Legacies  and  Devises  Depending  upon  Marriage. 

I  give  and  devise  the  farm  upon  which  I  reside  in 
the  town  of,  etc.,  to  my  wife,  A.  B.,  to  be  hers  as 
long  as  she  remains  my  widow.  The  said  farm  is 
described  as  follows  [description].  In  the  event  of 
the  marriage  of  my  said  wife  her  ownership  of  said 
farm  shall  cease  and  I  then  give  and  devise  the  same 
to  my  brother,  C.  D.  and  to  his  heirs  and  assigns 
forever. 

I  specifically  declare  that  if  any  of  my  children 
shall  marry  without  the  written  consent  of  the 


176  TESTAMENTARY   FORMS 

trustees  under  this  will,  or  their  successors,  the  in- 
terest of  such  child  as  beneficiary  in  any  trust  under 
this  will  shall  cease,  the  trust  shall  terminate  and 
the  principal  thereof  shall  go,  discharged  of  all 
trust,  to  the  person  or  persons  entitled  to  the  same 
on  the  death  of  such  child  unmarried  or  having 
married  with  the  written  consent  of  said  trustees  or 
their  successors. 

It  is  my  desire  that  my  daughter  A.  B.  shall 
marry  only  with  the  consent  of  C.  D.,  her  trustee. 
In  the  event  of  her  so  marrying,  I  authorize  and 
direct  him  to  pay  to  her  before  marriage  from  the 
capital  of  the  estate  held  in  trust  for  her  the  sum 
of  Ten  Thousand  Dollars,  with  which  to  provide  a 
marriage  outfit  and  furnish  any  house  she  may 
select  as  a  home;  and  such  payment  shall  reduce  the 
capital  of  the  trust  estate  to  the  amount  thereof. 
My  said  trustee  shall  not  be  required  to  see  to  the 
application  of  the  money  so  paid  to  her  or  be  held 
answerable  in  any  way  for  the  application  thereof. 
If  my  said  daughter  shall  marry  without  the  consent 
of  my  said  trustee,  no  advance  or  payment  from  the 
capital  of  the  trust  estate  is  to  be  made  to  her. 

It  is  my  desire  that  my  daughter  A.  B.  shall 
marry  only  with  the  consent  of  C.  D.,  her  trustee. 
In  the  event  of  her  so  marrying,  I  authorize  and 
direct  him  to  purchase  a  dwelling-house,  furniture 
and  household  effects  from  the  principal  of  the 
trust  and  convey  and  transfer  the  same  to  the  said 


CONDITIONS  PRECEDENT  AND  SUBSEQUENT   177 

A.  B.  and  her  heirs  and  assigns  forever,  expending 
for  the  purpose  not  exceeding  Twenty  Thousand 
Dollars;  and  the  principal  of  the  trust  shall  be  re- 
duced to  the  amount  so  expended.  While  the  de- 
cision of  my  said  trustee  as  to  the  location,  style  and 
character  of  the  house  shall  be  conclusive,  I  trust 
that  he  will  consult  with  my  said  daughter  and  as 
far  as  possible  be  governed  by  her  wishes. 

Sometimes  a  sum  of  money  is  charged  by  a  testator 
upon  a  devise  as  a  marriage  portion,  subject  to  the 
condition  of  marrying  with  the  consent  of  the  dev- 
isee or  some  other  person.  Such  a  provision  is 
not  advisable  as  embarrassments  may  arise  from 
incumbering  the  real  estate.  A  better  way  is  to 
give  the  amount  to  a  third  person  in  trust  to  pay  it 
with  accumulations  to  the  beneficiary,  if  she  marries 
with  the  trustee's  approval,  within  a  certain  period, 
and,  if  she  does  not  so  marry,  then  to  a  remainder- 
man, discharged  of  all  trust.  As  to  marriage  por- 
tion, see  form  on  p.  552. 

5.  RESTRAINT  OF  ALIENATION. 

A  condition  in  a  devise  that  the  devisee  shall  not 
alienate  is  void;  so  also  a  condition  to  restrain  or 
prohibit  the  operation  of  an  attachment  and  levy 
of  execution.  Turner  v.  Hallo  well  Sav.  Inst.,  76 
Me.  527;  Lovett  v.  Gillender,  35  N.  Y.  617;  Gush- 
ing v.  Spalding,  164  Mass.  287,  290.  This  subject  is 
fully  and  ably  discussed  in  Gray's  Restraints  on 


178  TESTAMENTARY   FORMS 

Alienations,  §§  104-278.    For  alienation  of  income, 
see  p.  395  et  seq. 

6.  CONDITIONS  NOT  TO  DISPUTE  WILLS. 

"The  law  relating  to  conditions  in  wills  imposing 
forfeitures  of  benefits  thereunder  on  those  contest- 
ing the  will  is  in  a  state  of  confusion  in  England  and 
America."  Rood  on  Wills,  §  615.  Of  course,  a  con- 
dition imposed  in  a  will  that  legatees  who  shall  con- 
test it  shall  forfeit  then*  legacies  applies  only  to  those 
who  would  be  entitled  to  the  property  under  the 
laws  relating  to  the  distribution  of  intestate  estates 
or  to  those  claiming  under  another  will.  In  certain 
"cases  the  courts  have  held  such  provisions  not 
effective  to  defeat  the  gift  to  one  contesting  the  will, 
because  there  was  no  gift  over  to  any  one  else  on  the 
violation  of  the  provision,  which  is  therefore  to  be 
treated  as  merely  in  terrorem  ;  which  is  a  convenient 
expression  invented  by  the  courts  to  excuse  them- 
selves from  giving  a  reason  for  disregarding  the 
plain  directions  of  the  testator.  This  evasion  has 
been  carried  so  far  as  to  hold  that  a  direction  in  the 
will  that  on  the  happening  of  the  event  the  devise 
or  bequest  should  become  a  part  of  the  residue,  is 
not  a  gift  over  to  any  one  else."  Rood  on  Wills, 
§  620.  See  2  Thomas's  Law  of  Estates  Created 
by  Will,  1117;  Theobald's  Law  of  Wills  (7th  ed.), 
624. 

A  gift  over  is,  perhaps,  generally  advisable;  and 
in  the  case  of  a  residuary  legatee  a  special  provision 
should  be  inserted,  because,  if  the  residuary  legatee 


CONDITIONS  PRECEDENT  AND  SUBSEQUENT   179 

contests  the  will  and  fails  and  the  condition  is  held 
to  be  good  and  there  is  no  gift  over,  the  residuum 
becomes  unbequeathed  or  undevised  property. 
The  following  are  offered  as  forms : 

Conditions  not  to  Dispute  Will. 

If  any  legatee  under  this  will  contests  the  probate 
thereof  or,  after  it  has  been  admitted  to  probate, 
interferes  in  any  way,  either  by  personal  action  or 
by  court  proceeding,  with  the  executors  or  with  the 
free  exercise  of  their  discretion  in  the  settlement  of 
my  estate,  then  I  revoke  and  declare  void  the  legacy 
to  such  legatee,  and  the  same  shall  fall  into  the  re- 
siduum of  my  estate. 

If  any  person  named  as  legatee,  or  cestui  que 
trust  in  this  will  or  in  any  codicil  hereto  shall  oppose 
the  probate  of  the  same  before  the  surrogate  or  in 
any  other  tribunal  whatever  or  shall  even  initiate 
legal  proceedings  to  set  aside  the  same  and  after- 
wards discontinue  such  proceedings  without  a  hear- 
ing, then  I  revoke  the  legacy,  or  other  interest  given 
herein,  to  such  person  and  direct  that  the  legacy  so 
revoked  shall  go  to  my  friend,  A.  B.  to  be  his  abso- 
lutely and  that  the  income  so  withdrawn  from  the 
cestui  que  trust  shall  be  equally  divided  among  his 
co-beneficiaries. 

If  any  legatee  under  this  will  or  any  codicil  hereto 
shall  oppose  the  probate  of  such  will  or  codicil  or 
shall  in  the  most  indirect  way  contest  or  be  con- 


180  TESTAMENTARY   FORMS 

cerned  in  contesting  the  same,  then  I  revoke  the 
legacy  herein  given  to  such  legatee  and  give  the 
same  to  the  People's  Hospital  of,  etc. 

If  any  legatee  or  devisee  under  this  will  except 
my  wife  (the  residuary  legatee  and  devisee)  shall 
take  legal  steps  to  prevent  the  probate  of  this  will 
or  any  codicil  hereto  or  shall  in  any  way  be  con- 
cerned in  contesting  the  same,  then  I  cut  off  such 
legatee  or  devisee  from  any  share  or  interest  in  this 
will  or  any  codicil  hereto  and  order  and  direct  that 
such  legacy  or  devise  so  revoked  shall  fall  into  the 
residuum  of  my  estate  and  go  to  my  residuary 
legatee  and  devisee. 

If  any  person  named  as  a  legatee  or  beneficiary  in 
this  will  or  any  codicil  hereto  objects  to  or  opposes 
the  probate  of  the  same  or  takes  action  hi  any  court 
to  have  the  same  set  aside  and  annulled  or,  on  re- 
quest of  my  executors,  declines  to  sign  any  applica- 
tion to  the  proper  tribunal  for  the  allowance  of  this 
will  or  any  codicil  hereto,  then  I  revoke  and  declare 
void  the  legacy,  share  or  interest  given  to  such  legatee 
or  beneficiary  in  this  will  or  any  codicil  hereto  and 
give  such  legacy,  share  or  interest  to  A.  B.  of  etc. 

If  my  son  A.  B.  whose  interest  in  this  will  is  given 
in  trust  as  hereinbefore  provided  shall  oppose  in  any 
way  and  in  any  tribunal  the  probate  of  this  will  or 
shall  question  in  any  way  or  in  any  tribunal  the 
validity  of  the  said  trust,  then  I  revoke  and  cancel 


CONDITIONS  PRECEDENT  AND  SUBSEQUENT   181 

the  same  and  bar  the  said  A.  B.  from  any  interest 
whatever  under  this  will  or  from  any  share  of  my 
property;  and  I  give  and  bequeath  the  Fifty  Thou- 
sand Dollars,  which  was  to  constitute  the  principal 
of  said  trust  and  over  which  the  said  A.  B.  was  given 
a  power  of  appointment,  to  my  two  other  sons  C.  D. 
and  E.  F.  to  be  equally  divided  between  them  to  be 
theirs  absolutely. 

I  declare  that,  if  any  legatee  or  devisee  under  this 
will,  except  the  residuary  devisee  and  legatee,  shall 
dispute  the  probate  thereof  or  in  other  words  shall 
endeavor  to  have  this  will  declared  void  in  any 
court  for  any  reason  whatever,  the  legacy  or  devise 
given  herein  to  him  or  her  shall  itself  be  void  and 
shall  fall  into  the  residue  of  my  estate.  I  also  de- 
clare that  the  commencement  by  any  legatee  or 
devisee  of  proceedings  against  the  validity  of  this 
will  shall  be  sufficient  to  cause  such  forfeiture  of 
the  legacy  or  devise,  and  that  the  legatee  or  devisee 
shall  not  be  entitled  to  claim  the  same  on  the  ground 
that  he  or  she  afterwards  abandoned  the  proceedings 
and  consented  to  the  probate  of  the  will.  If  my 
residuary  devisee  and  legatee  shall  dispute  the  pro- 
bate of  this  will  as  above  stated,  I  direct  that  the 
residuary  devise  and  legacy  to  him  shall  be  void, 
and  I  nominate  and  appoint  A.  B.  my  residuary 
devisee  and  legatee,  etc. 

If  any  legatee  or  devisee  under  this  will,  except 
the  residuary  legatee  and  devisee,  disputes  the  same 


182  TESTAMENTARY   FORMS 

by  opposing  its  probate,  either  in  the  Probate  Court 
or  in  any  other  Court,  the  legacy  or  devise  given 
him  or  her  herein  shall  be  void  and  shall  fall  into 
the  residue  of  my  estate.  If  my  residuary  devisee 
and  legatee  shall  dispute  the  probate  of  this  will, 
as  above  stated,  I  direct  that  the  residuary  devise 
and  legacy  to  him  shall  be  void,  and  I  nominate  and 
appoint  A.  B.  my  residuary  devisee  and  legatee,  etc. 

If  any  legatee,  devisee,  cestui  que  trust  or  re- 
mainderman named  and  provided  for  in  this  will 
shall  threaten  to  contest  or  shall  actually  contest 
the  probate  of  the  same  or  shall  in  any  way  question 
my  motives  and  acts  hi  preparing  and  executing  this 
will,  then  such  legatee,  devisee,  cestui  que  trust 
or  remainderman  shall  forfeit  all  interest  under  this 
will  and  the  legacy,  devise  or  other  provision  made 
for  him  shall  be  void.  In  such  case  the  legacy  or 
devise  shall  fall  into  the  residuum  of  my  estate,  the 
interest  of  the  cestui  que  trust  having  ceased  the 
trust  shall  terminate  and  the  principal,  discharged 
of  all  trust,  shall  be  paid  to  those  entitled  thereto 
upon  the  termination  of  the  trust  as  hereinbefore 
provided ;  and  the  interest  of  the  remainderman 
being  determined,  the  trust  shall  continue  and  only 
terminate  at  the  period  hereinbefore  stated  and 
provided  for  when  the  principal,  discharged  of  all 
trust,  shall  fall  into  the  residuum  of  my  estate. 

The  following  is  taken  from  the  will  of  a  well- 
known  man: 


CONDITIONS  PRECEDENT  AND  SUBSEQUENT     183 

Although  I  have  full  confidence  in  the  affection  of 
my  kindred,  and  believe  that  it  would  be  the  pleasure 
of  each  one  of  them  to  promote  the  objects,  to  which 
I  have  by  this  my  last  will  and  testament  dedicated 
the  greater  portion  of  my  fortune,  yet,  nevertheless, 
in  the  exercise  of  ordinary  prudence,  it  is  my  duty 
to  guard  fully  against  the  effects  of  any  evil  counsel 
or  influence,  which  may  seek  to  disturb  any  of  the 
provisions  of  this  my  last  will,  therefore  I  do  further 
direct,  and  declare,  that  if  any  person  named  in  this 
my  last  will  and  testament,  and  to  whom,  or  for 
whose  use,  I  have  made  any  devise,  or  bequest,  or 
any  person  claiming  through,  under,  or  hi  trust  for 
such  person,  shall,  at  any  tune,  during  the  life  of 
such  person,  or  within  twenty-one  years  after  the 
death  of  the  said  person,  dispute  the  validity  of 
this  my  last  will,  or  of  any  of  the  dispositions  herein, 
or  in  any  codicil  hereto,  contained,  or  shall  at  any 
time,  during  such  period  as  aforesaid,  refuse  to  con- 
firm this  my  will,  or  any  codicil  hereto  so  far  as  he, 
she,  or  they  lawfully  can,  or  to  do  such  acts  and 
things,  as  to  him,  her,  or  them  can  be  reasonably 
demanded  for  giving  full  effect  to  all,  or  any  of  such 
dispositions  or  if  any  proceeding  whatever,  shall,  at 
any  time,  during  such  period  as  aforesaid,  be  taken 
with  the  consent,  or  connivance  of  any  such  person, 
or  persons,  as  aforesaid,  by  means,  or  in  consequence 
of  which,  any  estate,  or  interest  could  be  hi  any  way 
attainable  by  such  person,  or  persons,  as  aforesaid, 
of  larger  extent,  or  value,  than  is  or  shall  be  by  this 
my  will,  or  any  codicil  hereto,  given  to  the  said 


184  TESTAMENTARY   FORMS 

person  or  persons,  and  such  proceeding  shall  not  be 
formally  and  at  once  disavowed,  stayed,  or  resisted 
by  the  said  person,  or  persons  as  aforesaid,  to  the 
full  extent  of  his  or  their  power  and  ability  so  to  do, 
then  and  in  such  case,  all  the  dispositions  herein, 
or  in  any  codicil  hereto  contained,  in  favor  of  the 
said  person,  or  persons  shall  cease,  and  be  void  to  all 
intents  and  purposes  whatsoever,  and  are  hereby 
revoked  accordingly.  [Gift  over.] 

Other  forms  will  be  found  on  pp.  562,  584. 

7.  CONDITIONS  AS  TO  RESIDENCE. 

"A  gift  of  property  to  one  for  a  home,  or  with 
other  doubtful  expression,  will  not  be  treated  as  a 
condition,  and  the  property  is  not  forfeited  by  living 
elsewhere.  When  the  provision  is  clearly  a  condi- 
tion the  courts  incline  to  give  it  as  narrow  a  con- 
struction as  possible.  And  a  condition  as  to  residence 
may  be  void  on  grounds  of  public  policy,  as  if  prop- 
erty should  be  given  to  a  woman  whose  husband's 
business  kept  him  in  New  York,  on  condition  that 
she  should  reside  only  in  Europe  till  death  or  divorce 
from  her  husband,  it  being  evident  that  the  purpose 
was  to  separate  her  from  her  husband.  But  any 
reasonable  condition  as  to  residence  is  generally  held 
valid,  and  failure  to  perform  the  condition  will 
defeat  the  estate,  whether  the  gift  is  of  realty  or 
personalty,  and  whether  the  condition  is  precedent 
or  subsequent.  Whether  the  acts  done  amount  to 
breach  or  performance  is  often  a  difficult  question. 


CONDITIONS  PRECEDENT  AND  SUBSEQUENT   185 

In  determining  it  the  courts  consider  the  purpose 
of  the  testator."  Rood  on  Wills,  §  626.  Sometimes 
the  condition  is  as  to  residence  on  a  particular  farm 
or  in  a  particular  house.  Talbott  v.  Hamill,  151  Mo. 
292;  Casper  v.  Walker,  33  N.  J.  Eq.  35;  Jenkins  v. 
Merritt,  17  Fla.  304.  And  sometimes  as  to  residence 
in  a  particular  locality  or  country.  Jenkins  v. 
Horwitz,  92  Md.  34.  Such  restrictions  as  to  resi- 
dence are  generally  not  advisable,  as  the  future  is 
so  uncertain.  It  is  well  to  provide,  however,  if 
such  condition  is  determined  upon,  that  on  breach 
of  it  the  estate  be  given  to  another. 

In  one  case  a  testator  provided  that  certain  in- 
come should  be  paid  to  a  granddaughter  for  life 
"provided  she  shall  reside  within  the  State  of  New 
York;  but  in  case  she  shall  not  reside  therein,"  then  a 
certain  part  of  said  income  was  to  be  paid  to  her  and 
the  residue  to  another. 

In  another  case,  after  giving  the  use  of  a  certain 
residence  for  ten  years  the  testator  provided,  "It 
is  my  will  and  intention  that  the  privilege  of  occu- 
pancy above  mentioned,  shall  be  personal  to  the 
said  A.  B.,  and  shall  not  be  assignable  or  transfer- 
able voluntarily,  or  by  judicial  or  other  sale,  and  that 
it  shall  extend  only  to  the  occupancy  of  said  premises 
for  the  purposes  above  mentioned." 

8.  GIFTS  TO  SERVANTS,  EMPLOYEES,  ETC. 

A  legacy  is  frequently  given  on  condition  that  the 
legatee  is  in  the  testator's  employ  at  the  time  of  his 
decease.  White  v.  Massachusetts  Institute,  171  Mass. 


186  TESTAMENTARY   FORMS 

84,  97.     The  following  are  offered  as  forms,  and  a  few 
forms  are  also  given  where  no  condition  is  attached. 

Gifts  to  Servants,  Employees,  etc. 

I  give  and  bequeath  to  each  servant  or  employee 
who  may  be  at  the  time  of  my  decease  in  my  service 
in  and  about  both  my  residence  in  the  city  of  Chicago 
and  my  country  estate  hi  the  town  of  Luneburg,  the 
sum  of  Five  Hundred  Dollars. 

I  give  and  bequeath  to  each  servant  who  at  the 
tune  of  my  decease  may  be  in  my  employ  at  my 
residence  in  the  city  of  Philadelphia,  fifty  dollars 
for  each  year  that  he  or  she  shall  have  so  been  hi 
my  continuous  employ  prior  to  my  decease.  I 
mean  and  intend  for  these  legacies  to  apply  alike 
to  house  and  out-door  servants. 

I  give  A.  B.  who  has  been  in  my  service  for  many 
years  a  legacy  of  One  Thousand  Dollars  as  a  recogni- 
tion of  faithful  devotion  to  my  interests. 

I  give  and  bequeath  to  A.  B.,  provided  she  is  hi 
my  service  at  the  time  of  my  decease,  the  sum  of 
One  Thousand  Dollars. 

I  give  and  bequeath  to  A.  B.,  who  has  been  hi  my 
service  for  many  years,  the  sum  of  One  Thousand 
Dollars.  This  legacy  is  to  be  paid  to  her  whether 
she  be  or  be  not  in  my  service  at  the  tune  of  my 
decease. 


CONDITIONS  PRECEDENT  AND  SUBSEQUENT   187 

I  give  and  bequeath  to  my  executors  the  sum  of 
Ten  Thousand  Dollars  to  be  divided  in  such  pro- 
portions as  they  may  determine  on  the  basis  of 
length  of  service  among  the  persons  living  at  the 
time  of  my  death  and  in  my  employ  in  and  about 
my  city  residence  and  stable  and  my  country  seat, 
grounds  and  stables. 

I  give  and  bequeath  to  each  person  who  may  be 
in  my  employ  in  my  country-house  at  the  tune  of 
my  decease  a  sum  equal  to  his  or  her  salary  for  the 
year  preceding  that  event. 

I  give  and  bequeath  to  each  person  who  may  be 
in  my  employ  in  my  country-house  at  the  tune  of 
my  decease  and  who  has  so  been  in  my  employ  for 
a  period  of  not  less  than  five  years  previously  thereto 
the  sum  of  Two  Thousand  Dollars. 

In  recognition  of  the  faithful  service  of  my  book- 
keeper A.  B.,  I  give  and  bequeath  to  him  the  sum 
of  Five  Thousand  Dollars;  and,  if  he  die  before 
me,  I  give  and  bequeath  the  same  to  his  wife, 
C.  D. 

If  A.  B.  is  in  my  employ  at  the  time  of  my  decease, 
I  give  him  the  sum  of  Five  Hundred  Dollars.  If  he 
dies  before  me  while  in  my  employ  and  leaves  issue 
living  at  the  tune  of  my  decease,  then  I  give  the  said 
Five  Hundred  Dollars  to  such  issue  to  be  equally 
divided  among  them. 


188  TESTAMENTARY   FORMS 

I  give  my  executors  ten  thousand  dollars  and 
request  them  to  distribute  it  among  those  living  at 
the  time  of  my  decease  who  shall  have  been  em- 
ployed by  me  in  my  business  for  a  continuous  period 
of  twenty  years  before  my  decease.  I  desire  that 
the  distribution  shall  not  be  equal  but  that  those 
who  have  suffered  from  any  misfortunes,  such  as 
illness,  etc.,  or  have  been  so  situated  that  they  have 
been  unable  to  accumulate  anything  or  have  ac- 
cumulated very  little  shall  receive  larger  shares  than 
those  who  have  been  more  fortunate  and  successful. 
My  executors  are  to  use  their  discretion  in  making 
the  distribution,  and  their  judgment  is  not  to  be 
questioned  by  any  one  and  the  distribution  is  to  be 
absolutely  binding  upon  my  estate.  I  particularly 
exempt  from  participation  in  this  division  any 
employee  who  is  named  as  a  legatee  hi  any  other 
part  of  this  will. 

9.  VARIOUS  CONDITIONS. 

If  a  legacy  is  given  on  condition  that  it  shall  not 
be  paid  unless  the  estate  reaches  a  certain  amount, 
it  may  be  well  to  state  that  that  amount  shall  be 
determined  by  the  final  account  and  that  the  ap- 
praisal shall  give  the  fair  market  value  of  the  assets. 

As  to  a  devise  "upon  condition  that  no  intoxicat- 
ing drinks  shall  ever  be  sold  upon  said  premises  by 
said  devisees  and  legatees,  and  in  case  said  condition 
is  not  kept  or  fulfilled,  then  said  devises  and  bequests 
to  revert,"  etc.  See  Nudd  v.  Powers,  136  Mass. 
273,  274,  276. 


VESTED   AND   CONTINGENT   REMAINDERS         189 

Vested  and  Contingent  Remainders. 

As  the  words  "heirs,"  " children,"  etc.,  are  such 
indefinite  terms,  an  attorney  when  drawing  a  will 
should  constantly  bear  in  mind  the  leading  rules 
of  law  relating  to  both  contingent  and  vested  re- 
mainders. 

An  estate  can  be  devised  in  remainder  defeasible 
upon  the  happening  of  a  condition  subsequent,  as, 
for  example,  a  devise  to  a  wife  for  life,  and  after 
her  death  to  be  equally  divided  among  the  testator's 
five  children  (named),  and,  provided  any  of  the  five 
die  before  the  wife,  then  to  be  equally  divided  among 
the  survivors.  Blanchard  v.  Blanchard,  1  Allen,  223; 
McArthur  v.  Scott,  113  U.  S.  340.  See  Phipps  v. 
Ackers,  9  Cl.  &  Fin.  583;  Ackers  v.  Phipps,  3  Cl.  & 
Fin.  665;  Phipps  v.  Williams,  5  Sun.  44. 

"When  an  estate  is  limited  to  take  effect  after  an 
estate  tail,  the  future  or  contingent  interest,  so 
limited,  constitutes  an  estate  in  remainder,  and 
does  not  take  effect  as  an  executory  devise."  Hall  v. 
Priest,  6  Gray,  18,  20. 

"It  is  a  settled  rule  of  law,  that  a  gift  shall  not  be 
deemed  to  be  an  executory  devise  if  it  is  capable  of 
taking  effect  as  a  remainder;  and  it  is  equally  well 
settled,  that  no  remainder  will  be  construed  to  be 
contingent  which  may,  consistently  with  the  inten- 
tion, be  deemed  vested."  Blanchard  v.  Blanchard, 
supra,  225. 

The  doctrine  of  acceleration  is  that  "if  there  be  a 
devise  for  life  with  remainder  over,  and  the  life 


190  TESTAMENTARY   FORMS 

estate  be  renounced  or  it  be  void,  the  remainder  is 
good  and  takes  effect  immediately.     Shelley's  Case, 
1  Co.  88  b,  101  a;  Fuller  v.  Fuller,  Cr.  Eliz.  422,  423." 
Shreve  v.  Shreve,  176  Mass.  456,  458. 
A  vested  remainder  may  be  created  as  follows: 

1.  A  devise  to  A.  for  life,  and  then  to  one  or  more 
(definitely  named)  in  fee. 

See  Fay  v.  Sylvester,  2  Gray,  171,  174,  175,  "The 
general  rule  is,  that,  where  a  will  gives  a  life  estate 
to  one,  with  a  devise  over,  either  for  life  or  in  fee, 
to  a  definite  class  of  persons,  the  presumption  is  that 
those  take  who  constitute  the  class  at  the  death  of 
the  testator,  unless  the  will  shows  a  different  in- 
tention." Dorr  v.  Lovering,  147  Mass.  530,  534. 

2.  A  devise  to  one  for  years  or  for  life  and  then  to 
the  "children"  of  some  other  person  than  the  testator, 
or  to  the  testator's  "grandchildren." 

The  "children"  or  "grandchildren"  living  at  the 
time  of  the  testator's  death  will  take  vested  re- 
mainders, subject,  however,  to  open  and  let  hi 
"children"  or  "grandchildren"  afterwards  born. 
Ballard  v.  Ballard,  18  Pick.  41;  Dole  v.  Keyes,  143 
Mass.  237.  See  Cook  v.  Cook,  2  Vern.  545. 

A  devise  may  be  to  one  for  his  life,  and  at  his 
death  the  remainder  hi  fee  to  the  testator's  children, 
who  will  take  vested  remainders.  Hill  v.  Bacon,  106 
Mass.  578. 

3.  Where  a  bequest  is  made  to  one  or  more  for  life, 
and  remainder  to  the  testator's  heirs,  or  heirs-at-law, 
or  next  of  kin,  or  relations,  or  such  persons  as  would 
take  his  estate  by  the  rules  of  law,  if  he  had  died  intestate. 


VESTED   AND   CONTINGENT   KEMAINDEES         191 

In  such  cases  the  bequest  is  to  those  who  are  such 
heirs,  next  of  kin,  or  relations  at  the  time  of  his 
decease,  "  unless  there  are  words  indicating  a  clear 
intention  that  it  shall  go  to  those  who  may  be  his 
relations  or  next  of  kin  at  the  time  of  the  happening 
of  the  contingency  upon  which  the  estate  is  to  be 
distributed."  Childs  v.  Russell,  11  Met.  16,  23. 
See  Bird  v.  Luckie,  8  Hare,  301 ;  Jones  v.  Colbeck,  8 
Ves.  38;  Welch  v.  Brimmer,  169  Mass.  204,  212,  and 
cases  cited.  "It  is  generally  true  that  when  prop- 
erty is  given  by  will  to  one  for  life,  with  remainder 
to  the  testator's  heirs-at-law,  and  the  life  tenant  is 
only  one  of  the  heirs  at  the  death  of  the  testator,  the 
life  tenant  is  not  excluded  from  taking  a  share  of 
the  remainder,  unless  there  are  clear  expressions  in  the 
will  to  the  contrary."  Rotch  v.  Lovering,  169  Mass. 
190,  200.  "Whether,  if  the  life  tenant  were  the  sole 
next  of  kin  or  hen-  of  the  testator  when  the  will  was 
made,  and  would  continue  to  be  such  if  he  survived 
the  testator,  and  this  were  known  to  the  testator, 
this  fact  alone  would  be  sufficient  to  show  that  the 
testator  did  not  intend  to  include  him  in  a  gift  of  the 
remainder  to  the  heirs  or  next  of  kin  of  the  testator, 
cannot  be  considered  as  free  from  doubt.  See  Lees  v. 
Massey,  3  De  Gex,  F.  &  J.  113;  2  Jarm.  Wills  (Bige- 
low's  ed.),  132,  141;  Cusacky.  Rood,  24  W.  R.  391." 
Fargo  v.  Miller,  150  Mass.  225,  230. 

The  following  are  common  methods  of  creating  a 
contingent  remainder: 

1.  Where  an  estate  is  given  to  one  for  life,  and  then 
" to  those  of  his  children  (or  the  testator's  children)  who 


192  TESTAMENTARY   FORMS 

shall  be  living  at  his  death,"  or  "to  two  for  life,  remainder 
to  the  survivor  of  them." 

The  remainder  must  necessarily  be  contingent 
until  the  death  of  the  first  taker.  Olney  v.  Hall,  21 
Pick.  311;  Holm  v.  Low,  4  Met.  190,  201. 

Where  a  will  provided  that  property  hi  the  hands 
of  trustees  was  to  be  by  them  paid  over  at  a  future 
date,  discharged  of  all  trust,  to  those  persons  who  at 
that  time  would  be  the  testator's  legal  representatives, 
that  is,  to  those  who  would  be  entitled  to  succeed  to 
personal  estate  hi  case  of  intestacy,  it  was  held  that 
a  contingent  and  not  a  vested  remainder  was  created. 
Eager  v.  Whitney,  163  Mass.  463. 

There  are  sometimes  statutes  to  the  effect  that  no 
expectant  estate  shall  be  defeated  or  barred  by  an 
alienation  or  other  act  of  the  owner  of  the  precedent 
estate,  nor  by  the  destruction  of  such  precedent 
estate  by  disseisin,  forfeiture,  surrender,  or  merger. 

2.  Where  an  estate  is  given  to  one  for  life,  and  then 
to  his  heirs. 

As  a  man  has  no  heirs  while  living,  the  remainder 
is  contingent  until  the  death  of  the  first  taker,  when 
it  vests  hi  those  who  are  then  his  heirs-at-law.  Put- 
nam v.  Gleason,  99  Mass.  454. 

3.  Where,  after  an  estate  for  life  with  a  power  to  sell 
and  convey  in  fee,  if  necessary  for  support  and  main- 
tenance, the  remainder,  if  any,  is  given  to  another  in  fee. 
Taft  v.  Taft,  130  Mass.  461,  465,  and  cases  cited. 

Provision  is  made  in  some  jurisdictions  as  to  the 
sale  or  mortgage  of  estates  subject  to  remainders, 
executory  devises,  or  powers  of  appointment,  etc. 


EXECUTORY   DEVISES   AND   PERPETUITIES        193 

Executory  Devises  and  Perpetuities. 

"There  are  two  kinds  of  executory  devise:  one, 
where  an  estate  is  devised  to  one,  but  upon  some 
future  event  that  estate  is  determined,  and  the  estate 
thereupon  is  to  go  to  another;  the  other,  when  the 
estate  is  limited  to  commence  in  futuro,  contrary  to 
the  rules  of  common  law.  In  the  latter  case  the  fee 
in  the  meantime  remains  in  the  heir  of  the  devisor." 
Nightingale  v.  Burrell,  15  Pick.  104,  111. 

"One  of  the  distinguishing  features  of  an  execu- 
tory devise  is  its  indestructibility  by  the  first  taker." 
Hence  where  a  testator  gave  to  his  grandchildren 
the  power  to  make  a  will  and  dispose  of  the  estates 
already  given  over  to  his  heirs,  if  they  should  arrive 
at  the  age  of  thirty  years  at  the  time  when  they  were 
to  receive  the  property  from  the  trustees,  it  was  held 
that  such  power  of  disposition  was  inconsistent  with 
and  defeated  the  gift  over.  Sears  v.  Russell,  8  Gray, 
86,  100. 

'•'A  perpetuity  is  a  future  limitation,  whether  ex- 
ecutory or  by  way  of  remainder,  and  of  either  real  or 
personal  property,  which  is  not  to  vest  until  after 
the  expiration  of,  or  will  not  necessarily  vest  within, 
the  period  fixed  and  prescribed  by  law  for  the  creation 
of  future  estates  and  interests;  and  which  is  not  de- 
structible by  the  persons  for  the  time  being  entitled 
to  the  property  subject  to  the  future  limitation, 
except  with  the  concurrence  of  the  individual  in- 
terested under  that  limitation."  Lewis  on  the  Law 
of  Perpetuity,  164. 


194  TESTAMENTARY   FORMS 

The  questions  which  arise  in  relation  to  perpetu- 
ities are  perplexing  and  often  difficult  of  solution. 
The  attorney  is  referred  to  the  masterly  exposition 
of  the  subject  in  Gray's  Rule  against  Perpetuities. 

Sometimes  statutes  provide  that  conditions  or  re- 
strictions, unlimited  as  to  time,  by  which  the  title 
or  use  of  real  property  is  affected  shall  be  limited  to 
a  certain  number  of  years  after  the  date  of  the  deed 
or  other  instrument,  or  the  date  of  the  probate  of 
the  will  creating  them,  except  in  cases  of  gifts  or 
devises  for  public,  charitable,  or  religious  purposes. 

If  the  testator  insists  on  deferring  the  vesting  or 
enjoyment  of  property  to  a  remote  or  even  a  semi- 
remote  period,  the  attorney  must  carefully  examine 
the  law  of  the  testator's  jurisdiction,  as  both  ad- 
judications and  statutes  have  so  modified  the 
original  law  of  perpetuities. 

For  convenience,  the  more  important  considera- 
tions are  arranged  as  follows: 

1.    The  general  rule  stated. 

All  limitations  by  way  of  executory  devise  are 
void  "which  may  not  take  effect  within  the  term  of 
a  life  or  lives  in  being  at  the  death  of  the  testator, 
and  twenty-one  years  afterwards,  as  a  term  in  gross, 
or,  in  case  of  a  child  en  venire  sa  mere,  twenty-one 
years  and  nine  months.  4  Kent  Com.  267;  1  Jar- 
man  on  Wills,  221;  4  Cruise  Dig.  tit.  32,  c.  24,  §  18." 
Brattle  Square  Church  v.  Grant,  3  Gray,  142,  152. 
An  agreement  that  each  of  the  parties  has  an  estate 
in  land  to  be  held  for  an  indefinite  period,  and  that 
no  part  is  to  be  sold  without  the  consent  of  both, 


EXECUTOKY   DEVISES   AND    PERPETUITIES        195 

violates  the  rule  against  perpetuities  and  is  void. 
In  re  Kosher,  26  Ch.  D.  801;  In  re  Dugdale,  38  Ch. 
D.  176;  Winsor  v.  Mills,  157  Mass.  362. 

A  trust  for  the  convenience  of  an  unincorporated 
association  in  renting  and  selling  land,  under  which 
the  land  is  held  for  no  other  purpose,  and  where  the 
income  is  not  accumulated  but  is  distributed  as  it 
accrues,  and  where  the  land  is  to  be  sold  free  of 
trusts  at  the  will  of  the  association,  and  where  the 
whole  equitable  interest  hi  the  trust  is  at  every 
moment  vested  absolutely  hi  those  who  at  that 
moment  are  shareholders,  and  never  can  become 
vested  in  any  other  persons  save  by  act  of  the  abso- 
lute owners  or  by  operation  of  law  upon  their  prop- 
erty, and  not  by  force  of  any  limitation  contained 
in  the  deed  of  trust,  the  equitable  interests  so  vested 
being  also  constantly  vendible  by  their  several 
owners  without  let  or  hindrance,  as  well  as  subject 
to  their  debts  and  passing  like  other  property  upon 
death  by  virtue  not  of  the  deed  of  trust  but  of  the 
general  laws  governing  the  disposition  of  the  prop- 
erty of  decedents,  withdraws  no  property  from 
commerce,  and  is  not  void  either  under  the  rule 
against  perpetuities  or  as  creating  an  illegal  re- 
straint upon  alienation.  Howe  v.  Morse,  174  Mass. 
491. 

A  gift  of  the  residue  "to  'E.,  to  be  distributed  by 
her  among  descendants,  children,  and  grandchil- 
dren, according  to  her  discretion,"  does  not  violate 
the  rule  against  perpetuities.  Woodbridge  v.  Wins- 
low,  170  Mass.  388. 


196  TESTAMENTARY   FORMS 

It  is  not  sufficient  that  the  limitation  "be  capable 
of  taking  effect  within  the  prescribed  period:  it 
must  be  so  framed  as  ex  necessitate  to  take  effect,  if 
at  all,  within  that  time."  Brattle  Square  Church 
v.  Grant,  ubi  supra,  p.  153. 

The  rule  at  common  law  is  well  stated  in  Remsen 
on  Wills,  193,  194. 

The  following  will  illustrate  the  violation  of  the 
rule: 

Where  the  limitation  is  made  to  take  effect  when 
the  estate  should  cease  to  be  used  for  a  certain  pur- 
pose. Brattle  Square  Church  v.  Grant,  ubi  supra, 
p.  155. 

Where  the  devise  was  to  a  daughter  for  life,  and 
upon  her  death  to  her  children  in  fee,  but  if  the 
children  or  either  of  them  should  die  without  issue, 
in  the  lifetime  of  any  husband  of  any  daughter,  then 
to  the  heirs  of  the  testator.  Although  at  the  time 
of  the  testator's  death  the  daughter  might  have  a 
husband  living,  she  might,  in  the  event  of  his  death, 
contract  a  second  marriage  and  have  issue  by  a 
husband  who  was  not  born  at  the  time  of  the  death  of 
the  testator;  and  so  the  devise  over  might  by  possi- 
bility not  take  effect  during  a  life  in  being  at  the 
testator's  death  and  more  than  twenty-one  years 
thereafter.  But  should  the  devise  to  the  heirs  of 
the  testator  be  made  to  depend  upon  the  children 
or  either  of  them  dying  without  issue,  in  the  life- 
time of  any  husband  of  the  daughter,  living  at  the 
testator's  death,  it  would  be  good  because  limited 
over  upon  an  event  which  must  occur  within  the 


EXECUTORY   DEVISES   AND   PERPETUITIES        197 

allowed  period,  that  is,  a  life  in  being  at  the  testator's 
death.    See  Sears  v.  Russell,  8  Gray,  86,  98,  99. 

Where  an  estate  was  given  "in  equal  parts  to  and 
amongst  my  nephews  and  nieces"  (children  of  his 
deceased  sisters),  "the  portion  coming  to  my  nieces 
to  be  held  in  trust  for  them  during  the  term  of 
twenty-five  years  from  the  day  of  my  death,  the  in- 
come to  be  payable  to  their  individual  order  only; 
and  on  the  death  of  each  female  cestui  que  trust  her 
portion  of  the  income  shall  be  payable  to  her  chil- 
dren or  child,  should  she  leave  any,  otherwise  to 
the  remaining  cestuis  que  trust  during  said  term  of 
twenty-five  years.  At  the  expiration  of  said  term 
of  twenty-five  years,  the  capital  of  this  trust  fund 
shall  be  paid  to  my  said  nieces,  and  to  the  children 
or  child  of  any  of  them  who  shall  then  be  deceased, 
the  children  or  child  of  a  deceased  niece  of  mine 
taking  the  parent's  share.  Should  any  of  my  said 
nieces  die,  leaving  no  children  or  child  surviving  at 
expiration  of  said  term  of  twenty-five  years,  her  share 
shall  go  in  equal  parts  to  any  surviving  nieces  or 
niece  of  mine,  and  to  the  child  or  children  of  any  one 
who  shall  have  previously  died,  such  child  or  children 
last  mentioned  taking  the  parent's  share."  "It  is 
true  that  it  might  happen  that  neither  of  the  nieces 
would  die  within  four  years  of  the  death  of  the 
testator,  so  that,  in  fact,  the  postponement  of  the 
vesting  of  the  estate  in  her  children  would  not  ex- 
ceed her  life  and  twenty-one  years  added;  but  it  is 
equally  true  that  all  of  the  nieces  might  die  within 
four  years  of  the  testator's  death,  and  thus  the 


198  TESTAMENTARY   FORMS 

period  of  postponement  exceed  the  legal  limit." 
So,  likewise,  "the  executory  devises  to  the  surviv- 
ing nieces  or  niece  or  their  children,  in  case  one  or 
more  of  the  nieces  should  die  within  the  term, 
leaving  no  children,"  as  well  as  "the  executory  be- 
quest of  the  income,  in  case  of  the  death  of  a  niece 
within  the  term  of  twenty-five  years,"  are  void  for 
remoteness.  Sears  v.  Putnam,  102  Mass.  5,  6,  8. 

"The  rule  governs  both  legal  and  equitable  in- 
terests, and  interests  in  both  realty  and  personalty." 
Gray's  Rule  against  Perpetuities  (2d  ed.),  §  202, 
and  Chap.  VIII. 

It  is  to  be  noted  that  the  common  law  has  been 
radically  changed  in  many  States  not  only  as  to 
lives  in  being  but  in  other  particulars.  Hence  a 
draftsman  cannot  safely  draw  a  will  which  defers 
the  vesting  of  property  without  consulting  the 
local  law. 

"The  statutes  of  New  York  and  some  other 
States  provide  that  the  absolute  power  of  aliena- 
tion is  suspended  when  there  are  no  persons  in 
being  by  whom  an  absolute  fee  in  possession  can  be 
conveyed.  Under  such  statute  it  is  held  in  New 
York  that  there  are  but  two  ways  in  which  this 
suspension  may  be  accomplished:  (1)  by  the  crea- 
tion of  a  trust  which  vests  the  estate  in  trustees, 
and  (2)  by  the  creation  of  future  estates  vesting 
upon  the  occurrence  of  some  future  and  contingent 
event. 

"In  the  case  of  a  possible  conflict  of  laws,  it 
should  be  noted  that  the  validity  of  a  gift  of  per- 


EXECUTORY   DEVISES   AND    PERPETUITIES        199 

sonal  property  depends  partly  on  the  law  of  the 
testator's  domicile,  partly  on  the  law  of  the  lega- 
tee's domicile,  and  possibly  on  the  law  of  another 
jurisdiction  where  the  trust  is  to  be  administered. 
Thus,  the  consideration  of  the  laws  of  all  three 
jurisdictions  may  become  necessary.  In  the  case 
of  real  estate  the  laws  of  its  situs  must  also  be  con- 
sidered. An  equitable  conversion  of  real  estate 
may  sometimes  avoid  the  operation  of  the  Rule 
against  Perpetuities.  Professor  Gray  says:  'The 
view  now  generally  adopted  in  America  is  that  the 
decision  of  the  question  must  depend  upon  whether 
there  is  an  immediate  absolute  equitable  conversion 
of  the  real  estate.  If  the  deed  or  will  directs  such 
immediate  absolute  conversion  into  personalty,  then 
the  settlement  or  devise  is  valid,  but  if  there  is  no 
such  direction  for  immediate  absolute  conversion, 
the  devise  or  settlement  is  invalid."1  Remsen  on 
Wills,  200. 

2.  So  far  as  the  operation  of  this  rule  is  concerned, 
the  mil  speaks  from  the  time  of  the  death  of  the  testator, 
and  not  from  the  date  of  its  execution. 

"The  rule  that  the  question  of  remoteness  is  to 
be  determined  from  the  time  of  the  testator's  death, 
and  not  of  his  will,  is  now  settled."  Gray's  Rule 
against  Perpetuities  (2d  ed.),  §  231. 

As  where  property  is  given  in  trust,  the  income 
to  be  paid  to  the  testator's  son  during  his  life,  and 
at  his  decease  to  his  widow  and  children,  if  any, 
during  their  lives;  and  upon  the  death  of  the  son, 
widow,  and  children  the  principal  to  go  to  some  one 


200  TESTAMENTARY   FORMS 

else.  If  the  son  dies  unmarried  and  childless  before 
the  testator,  the  gift  over  at  the  testator's  decease 
takes  effect,  and  the  objection  of  remoteness  is  thus 
removed.  Hosea  v.  Jacobs,  98  Mass.  65,  67. 

3.  "The  rule  regards  not  the  possession,  but  the 
title  or  absolute  right.  If  that  vest  within  the  prescribed 
period,  the  rule  is  satisfied." 

As  where  property  is  given  hi  trust,  the  income 
to  be  paid  to  the  testator's  daughter  during  life,  and, 
after  her  death,  to  her  husband,  if  living,  during  his 
life;  and  upon  the  daughter's  decease,  her  husband 
having  already  deceased,  or  upon  his  decease,  he 
having  survived  her,  the  entire  principal  to  go  to 
those  of  the  daughter's  children  living  at  the  tune 
of  her  decease.  The  testator,  we  will  suppose,  dies 
immediately  after  making  his  will,  his  daughter 
then  being  one  year  old.  She  afterwards  marries 
a  person  not  in  being  at  the  time  of  the  testator's 
decease,  and  such  person  proves  to  be  the  survivor 
of  the  marriage.  But  the  rule  against  perpetui- 
ties is  not  violated,  because  the  husband's  interest, 
"although  contingent  during  the  life  of  his  wife, 
becomes  vested  at  her  death,  and  the  limitation 
over  to  the  children  is  not  at  all  dependent  upon 
such  life  interest;  but  itself  also  becomes  vested 
absolutely  at  the  same  time."  Loring  v.  Blake,  98 
Mass.  253,  259-261.  See  Gray's  Rule  against 
Perpetuities  (2d  ed.),  §  232. 

So  it  would  seem,  in  all  cases  where  a  trust  estate 
created  either  by  deed  or  will  is  not  inalienable, 
although  it  is  not  limited  to  terminate  within  the 


EXECUTORY   DEVISES   AND   PERPETUITIES        201 

prescribed  period;  the  reason  being  that,  at  any 
time  after  the  termination  of  the  lives  in  being,  the 
trustee  and  cestui  que  trust  may  alienate  the  estate 
by  a  joint  conveyance.  Harlow  v.  Cowdrey,  109 
Mass.  183,  184. 

4.   Alternative  contingencies. 

If  a  testator  "  gives  the  estate  over  on  one  con- 
tingency which  must  happen,  if  at  all,  within  the 
limit  of  the  rule,  and  that  contingency  does  happen, 
the  validity  of  the  distinct  gift  over  in  that  event 
will  not  be  affected  by  the  consideration  that  upon 
a  different  contingency,  which  might  or  might  not 
happen  within  the  lawful  limit,  he  makes  a  dis- 
position of  his  estate  which  would  be  void  for  re- 
moteness. The  authorities  upon  this  point  are 
conclusive.  Longhead  v.  Phelps,  2  W.  Bl.  704.  Sug- 
den  and  Preston,  arguendo,  in  Beard  v.  Westcott,  5 
B.  &  Aid.  809,  813, 814;  Minter  v.  Wraith,  13  Sim.  52; 
Evers  v.  Chalk's,  7  H.  L.  Cas.  531;  Armstrong  v. 
Armstrong,  14  B.  Monr.  333;  1  Jarman  on  Wills, 
244;  Lewis  on  Perp.  c.  21;  2  Spence  on  Eq.  125, 
126."  As  where  the  income  of  a  trust  estate  is 
given  to  the  testator's  son  for  life,  and  upon  his 
death,  leaving  no  children  surviving,  the  principal 
is  given  over  to  a  charity;  but,  if  such  son  leaves 
children  surviving,  the  income  to  be  paid  to  them 
during  their  lives,  and  the  principal  then  to  go  to 
the  charity.  It  is  plain  that  in  the  first  case  the  be- 
quest over  to  the  charity  is  good,  and  in  the  second 
too  remote.  But  if  the  contingency  upon  which  the 
bequest  is  valid  should  hereafter  occur,  namely, 


202  TESTAMENTAEY   FORMS 

the  death  of  the  son  leaving  no  children  surviving, 
the  gift  will  take  effect  immediately.  Jackson  v. 
Phillips,  14  Allen,  539,  572,  573. 

5.  "Where  a  devise  is  given  to  a  class  of  persons 
answering  a  given  description,  and  any  member  of  that 
class  may  possibly  have  to  be  ascertained  at  a  period  ex- 
ceeding the  limits  allowed  by  law,  the  whole  devise  is 
void."    Hills  v.  Simonds,  125  Mass.  536,  539. 

But  where  the  income  of  a  trust  estate  was  given 
to  the  testator's  two  sons  for  life,  and  then  the 
estate  was  to  be  divided  among  his  nephews  and 
nieces  during  their  lives,  and  "  after  their  decease 
the  principal  to  be  equally  divided  among  their 
children  or  their  legal  representatives,"  it  was  held 
to  be  equivalent  to  several  and  distinct  devises  to 
different  classes,  and  therefore  good  as  to  the  chil- 
dren of  such  nephews  and  nieces  as  were  living  at 
the  testator's  death,  but  not  as  to  the  children  of 
after-born  nephews  and  nieces.  Hills  v.  Simonds, 
ubi  supra. 

6.  Directions  to  accumulate  the  income. 

"At  common  law,  the  power  of  controlling  the 
rents  and  profits  was  coextensive  with  the  power  to 
dispose  of  the  estate  which  produced  them,  the  limit 
of  the  accumulation  of  annual  income  was  the  same 
as  the  limit  of  the  creation  of  future  estates,  and 
the  enjoyment  of  the  profits  could  not  be  suspended 
for  a  longer  period  than  the  full  power  of  alienating 
the  estate  itself.  Thellusson  v.  Woodford,  4  Ves. 
227;  s.  c.  11  Ves.  112."  Odell  v.  Odell,  10  Allen,  1,  5. 

In  the  present  "  state  of  the  authorities,  and  in 


EXECUTOKY   DEVISES   AND    PERPETUITIES        203 

the  absence  of  any  legislation  upon  the  subject,  we 
are  not  prepared  to  say  that  accumulation  for  a 
charitable  purpose  can  in  no  case  be  allowed  for  a 
fixed  period  of  more  than  twenty-one  years,  or  for 
a  contingent  period  beyond  a  life  or  lives  hi  being 
and  twenty-one  years  afterward."  Odell  v.  Odell, 
ubi  supra,  p.  12. 

A  gift  which  vests  within  the  required  period  is 
good,  although  accompanied  by  a  void  direction 
for  accumulation.  Odell  v.  Odell,  ubi  supra,  pp. 
13,  14. 

But  in  all  cases  of  bequests  to  trustees  to  invest 
and  accumulate,  if  the  provisions  relative  to  the 
disposition  of  the  principal  and  income  of  the  fund 
are  void,  then  the  directions  to  invest  and  accumu- 
late, being  auxiliary  thereto,  are  also  void.  Fosdick 
v.  Fosdick,  6  Allen,  41,  48. 

The  question  as  to  the  accumulation  of  incomes, 
interest,  profits,  and  rents  is  often  a  perplexing  one. 
Questions  arise  as  to  whether  such  accumulation 
applies  to  royalties  on  ore  to  be  mined  and  to  coal 
and  oil  taken  on  leases.  See  Palms  v.  Palms,  68 
Mich.  355;  Appeal  of  Stoughton,  88  Pa.  St.  198. 
In  some  jurisdictions  there  are  statutes  on  the  sub- 
ject and  also  on  accumulations  for  the  benefit  of 
minors.  See  Hascoll  v.  King,  162  N.  Y.  134;  Ed- 
ward's Estate,  190  Pa.  St.  177;  Goldtree  v.  Thomp- 
son, 79  Cal.  613;  Toms  v.  Williams,  41  Mich.  552. 
It  should  be  ascertained  whether  accumulations 
from  realty  and  personalty  are  by  statutory  regula- 
tions put  upon  the  same  basis.  See  1  Perry  on  Trusts 


204.  TESTAMENTARY   FORMS 

(6th  ed.),  §  393  et  seq.  Statutes  and  decisions  should 
be  examined  to  see  if,  when  the  prescribed  period  is 
exceeded,  the  trust  is  void  or  invalid  as  to  the 
excess. 

"Where  there  are  no  statutes  regulating  accumu- 
lations, a  direction  to  accumulate  a  fund  for  a 
charity,  for  a  term  beyond  the  common-law  limit, 
does  not  vitiate  the  gift  for  the  charity,  although 
no  limit  has  been  determined  by  courts  during 
which  an  accumulation  for  a  charity  may  be  per- 
mitted. It  is  probable  that  courts  would  take  care 
that  no  extraordinary  or  extravagant  term  for  ac- 
cumulation should  be  allowed  for  a  future  and 
prospective  good.  But  where  there  are  statutes 
against  accumulations,  charities  will  be  governed 
by  the  same  rules  unless  they  are  specially  excepted." 
1  Perry  on  Trusts  (6th  ed.),  §  399. 

7.  A  definite  term  of  years,  not  exceeding  twenty- 
one,  may  be  fixed  for  the  future  vesting  of  an  estate, 
without  any  reference  to  any  life  or  lives.    See  Odell  v. 
Odell,  ubi  supra,  pp.  12,  14;  Thorndike  v.  Loring,  15 
Gray,  391 ;  Sears  v.  Putnam,  102  Mass.  5. 

8.  The  application  of  the  rule  io  public  charities. 
"A  public  or  charitable  trust  may  be  perpetual 

in  its  duration."  Jackson  v.  Phillips,  14  Allen,  539, 
550.  "As  it  is  established  for  objects  of  public, 
general,  and  lasting  benefit,  it  is  allowed  by  the  law 
to  be  as  permanent  as  any  human  institution  can 
be,  and  courts  will  readily  infer  an  intention  in  the 
donor  that  it  should  be  perpetual."  Odell  v.  Odell, 
ubi  supra,  p.  6. 


EXECUTORY   DEVISES   AND    PERPETUITIES        205 

"If  a  devise  in  fee  for  the  benefit  of  a  charity 
is  accompanied  by  an  executory  devise  over  to  in- 
dividuals upon  the  happening  of  a  contingency  which 
may  possibly  not  occur  within  the  time  prescribed 
by  the  rule  against  perpetuities,  the  devise  over  is 
void,  for  the  reason  that  until  the  contingency 
happens  it  cannot  be  ascertained  in  whom  the  title 
will  be."  Odell  v.  Odell,  ubi  supra,  p.  7;  Wells  v. 
Heath,  10  Gray,  17,  25,  26.  See  Stone  v.  Framing- 
ham,  109  Mass.  303. 

"If  the  gift  is  made  hi  the  first  instance  to  an  in- 
dividual, and  then  over,  upon  a  contingency  which 
may  not  happen  within  the  prescribed  limit,  to  a 
charity,  the  gift  to  the  charity  is  void,  not  because 
the  charity  could  not  take  at  the  remote  period, 
but  because  it  tends  to  create  a  perpetuity  in  the 
individual,  who  is  the  first  taker,  by  making  the 
estate  inalienable  by  him  beyond  the  period  allowed 
by  law."  Odell  v.  Odell,  ubi  supra,  p.  7. 

"  But  a  gift  may  be  made  in  trust  for  a  charity  not 
existing  at  the  date  of  the  gift,  and  the  beginning  of 
whose  existence  is  uncertain,  or  which  is  to  take 
effect  upon  a  contingency  which  may  possibly  not 
happen  within  a  life  or  lives  in  being  and  twenty-one 
years  afterwards,  provided  there  is  no  gift  of  the 
property  meanwhile  to  or  for  the  benefit  of  any  in- 
dividual or  any  private  corporation."  Odell  v.  Odell, 
p.  7.  See  Gray's  Rule  against  Perpetuities  (2d  ed.), 
§  589  et  seq. 

A  bequest  to  provide  a  fund  for  the  permanent 
care  of  a  private  tomb  or  burial-place  has  been  held 


206  TESTAMENTARY   FORMS 

to  create  a  perpetuity  for  a  use  not  charitable. 
Bates  v.  Bates,  134  Mass.  110,  114.  But  see  Gray's 
Rule  against  Perpetuities  (2d  ed.),  §§  311,  311  a. 
But  it  has  been  also  held  in  Massachusetts  that  a 
trust  to  keep  a  burial  lot  and  monument  always  in 
good  order  is,  under  the  statutes,  a  good  perpetual 
trust.  Morse  v.  Natick,  176  Mass.  510,  513. 

It  is  well  to  bear  in  mind  that  if  the  charitable 
objects  fail  at  a  subsequent  tune,  however  remote, 
a  resulting  trust  for  the  benefit  of  the  testator  and 
his  heirs  will  arise.  Easterbrooks  v.  Tillinghast,  5 
Gray,  17,  21.  But  "no  neglect,  misapplication  of 
funds,  or  other  breach  of  trust  will  give  a  right  to 
the  heirs-at-law  to  call  upon  a  court  of  equity  to 
declare  a  resulting  trust  for  themselves."  Sander- 
son v.  White,  18  Pick.  328,  334. 

9.  The  application  of  the  rule  to  conditions  sub- 
sequent. 

The  rule  does  not  apply  to  conditions  subsequent, 
because  "a  right  of  entry  for  the  breach  of  the 
condition  is  reserved  to  the  grantor  or  devisor 
and  his  heirs,  and  may  be  released  by  him  or 
them  at  any  tune."  Tobey  v.  Moore,  130  Mass. 
448,  450. 

In  Gray's  Restraints  on  Alienation,  §  42,  n.,  the 
learned  author  says:  "There  is  no  reason  in  the 
history  of  the  law,  or  in  its  principles,  why  the  rule 
against  perpetuities  should  not  be  applied  to  con- 
ditions. The  reason  sometimes  given  for  applying 
it  to  an  executory  devise  and  not  to  a  condition, 
that  the  former  cannot  be  released,  while  the  latter 


EXECUTORY   DEVISES   AND    PERPETUITIES        207 

can  be,  is  unsound,  for  an  executory  devise  to  A. 
and  his  heirs  may  always  be  released  by  A.,  and  yet 
is  unquestionably  within  the  rule. 

"The  practical  inconvenience  of  not  applying  the 
rule  to  conditions  is  great,  especially  in  America, 
where  all  a  man's  children  are  his  heirs,  and  where, 
in  a  generation  after  his  death,  his  heirs  may  be 
half  a  hundred  or  more  in  number,  and  scattered  all 
over  the  continent." 

10.  The  application  of  the  rule  in  the  case  of  the 
exercise  of  a  power  of  appointment  given  by  a  mill. 

It  has  been  held  in  England  that  where  a  grand- 
daughter, under  the  power  which  the  original  testator 
by  his  will  gave  to  her,  might  have  given  a  power  to 
appoint  to  children  born  after  his  death  in  violation 
of  the  rule  against  perpetuities,  the  power  was  valid 
if  the  appointment  was  kept  within  proper  limits. 
Slark  v.  Dakyns,  10  Ch.  App.  35. 

For  a  case  where  a  power  was  given  to  the  testa- 
tor's wife  to  select  the  objects,  and  to  direct  and 
appoint  the  proportions  of  the  testator's  estate  to 
be  conveyed,  assigned,  and  delivered  to  and  among 
the  testator's  children,  etc.,  and  it  was  held  that 
the  same  was  fully  executed  by  the  wife's  will,  see 
Loring  v.  Blake,  98  Mass.  253,  261-266. 

A.  bequeathed  stock  to  B.  for  life,  with  remainder  to 
such  persons  as  B.  should  by  will  appoint.  B.  by  a 
general  bequest  appointed  the  stock  to  her  daughter 
C.  for  life,  with  remainder  to  C.'s  children  who 
should  attain  twenty-one  or  marry.  Held,  that  the 
gift  to  the  children  of  C.  was  void  for  remoteness. 


208  TESTAMENTARY   FORMS 

In  re  Powell's  Trusts,  39  L.  J.  Ch.  N.  s.  188.  See 
Theobald's  Law  of  Wills  (7th  ed.),  605,  610. 

11.  The  disposition  of  the  property  when  the  limita- 
tion over  is  void. 

In  such  case  "the  estate  becomes  vested  in  the 
first  taker,  discharged  of  the  condition  or  limitation 
over,  according  to  the  terms  in  which  it  was  granted 
or  devised;  if  for  life,  then  it  takes  effect  as  a 
life  estate;  if  in  fee,  then  as  a  fee-simple  absolute. 

1  Jarman  on  Wills,  200,  783;  Lewis  on  Perp.  657; 

2  Bl.  Com.  156;   4  Kent  Com.  130;  Co.  Lit.  206  a, 
2066,   223  a."     Brattle   Square  Church  v.    Grant, 

3  Gray,  142,  156.    So  where  the  limitation  over  of 
the  fee  to  the  heirs-at-law  of  the  children  of  the 
testator's    daughter   was   void,    the   daughter   and 
children  being  successively  entitled  to  the  income  of 
the  estate,  it  was  held  that  the  effect  of  such  invalid- 
ity was  not  to  defeat  the  prior  life  estates  to  such 
children.     Lovering  v.  Worthington,  106  Mass.  86, 
88. 

In  many  cases  the  devise  being  void,  the  gift  by 
the  residuary  clause  takes  effect,  and  the  residuary 
legatees  become  entitled  to  distribution.  See  Thorn- 
dike  v.  Loring,  15  Gray,  391, 398.  Lovering  v.  Lover- 
ing,  129  Mass.  97,  100;  Hall  v.  Hall,  123  Mass.  120. 
As  to  the  effect  of  interest  being  too  remote,  see 
Gray's  Rule  against  Perpetuities  (2d  ed.),  §  247 
et  seq. 


CHAPTER  X 

DESCRIPTION  OF  LEGATEES  AND  LEGACIES 

Description  of  Legatees. 

11  IT  has  long  been  settled  that  when  in  a  will  the 
name  or  description  of  a  legatee  is  erroneous,  the 
legacy  shall  not  fail  of  effect  if  it  can  be  ascertained 
beyond  reasonable  doubt,  by  legal  evidence,  whom 
the  testator  intended  to  name  or  describe.  And  this 
intention  may  be  ascertained  either  by  the  context 
of  the  will  or  by  parol  evidence,  as  to  all  material 
facts  relating  to  the  person  who  claims  the  legacy, 
and  to  the  circumstances  of  the  testator  and  of  his 
family  and  affairs.  1  Roper  on  Leg.  (2d  Amer.  ed.) 
164  et  seq.',  2  Williams  on  Executors  (4th  Amer.  ed.), 
164  et  seq.',  Wigram  on  Wills  (3d  ed.),  51  etseq" 
Thayer  v.  Boston,  15  Gray,  347,  348. 

The  attorney  should  see  that  the  name  of  the 
legatee  is  absolutely  correct,  not  only  in  the  case  of 
individuals,  but  in  that  of  associations,  organizations, 
societies,  and  corporations. 

Sometimes  a  testator  provides  that  certain  persons 
or  the  issue  of  a  particular  marriage  shall  be  excluded 
from  taking  under  the  will. 

Forms  like  the  following  are  often  used: 

209 


210  TESTAMENTARY   FORMS 

Exclusion  of  Certain  Persons. 

I  give  and  bequeath  to  my  son  A.  B.  the  sum  of 
Ten  Thousand  Dollars;  and,  if  he  should  die  be- 
fore me,  then  I  give  and  bequeath  the  same  to  his 
issue  living  at  the  tune  of  my  decease  other  than 
his  issue  by  his  present  wife.  In  default  of  such 
issue  the  said  Ten  Thousand  Dollars  shall  fall  into 
the  residuum  of  my  estate. 

I  give  and  bequeath  to  my  daughter  A.  B.  the 
sum  of  Five  Thousand  Dollars;  and,  if  she  should 
die  before  me,  then  I  give  and  bequeath  the  same  to 
such  issue  of  hers  living  at  the  tune  of  my  decease 
as  she  may  have  by  some  husband  other  than  her 
present  husband.  In  default  of  such  issue  the  said 
Five  Thousand  Dollars  shall  fall  into  the  residuum 
of  my  estate. 

The  description  of  legatees  by  other  words  than 
proper  names,  such  as  "  children,"  " heirs,"  etc.,  is  a 
constant  source  of  difficulty  and  embarrassment. 

"The  leading  principle  is  that  where  a  bequest  is 
immediate  to  'children'  in  a  class,  children  in  ex- 
istence at  the  death  of  the  testator,  and  these  alone, 
are  entitled."  1  Williams  on  Executors  (10th  Eng. 
ed.),  844.  But  children  en  venire  sa  mere  come  within 
the  rule,  because  "a  child  is  to  be  considered  in  esse 
at  a  period  commencing  nine  months  previously  to 
its  birth,  and  where  there  is  not  evidence  to  rebut 
the  presumption,  it  is  conclusive."  "Generally  a 
child  will  be  considered  in  being  from  conception  to 


DESCRIPTION   OF   LEGATEES  211 

the  time  of  its  birth,  in  all  cases  where  it  will  be  for 
the  benefit  of  such  child  to  be  so  considered."  Hall 
v.  Hancock,  15  Pick.  255,  257.  Sometimes  statutes 
declare  that  posthumous  children  shall  be  consid- 
ered as  living  at  the  death  of  their  parent.  "When 
a  devise  or  bequest  is  made  direct  to  wife  and 
children,  in  the  absence  of  clear  language  indicating 
a  gift  to  them  as  a  body  or  a  class,  it  should  be  held 
that  they  take  individually  as  tenants  in  common 
and  that  their  interest  does  not  depend  upon  sur- 
vivorship." Matter  of  Russell,  168  N.  Y.  169,  176. 
"The  immediate  lawful  descendants  of  the  person 
named  take  under  a  gift  to  his  children.  His  grand- 
children, stepchildren,  adopted  children,  and  illegiti- 
mate children,  do  not  take  unless  it  appears  by  the 
context  of  the  will,  or  by  the  extrinsic  circumstances 
that  they  were  intended  to  take,  as  if  there  were  no 
other  children."  Rood  on  Wills,  §  442.  "Nephews 
and  nieces  mean  prima  fade  the  children  of  broth- 
ers and  sisters,  including  those  of  the  half-blood." 
Theobald  on  Wills  (7th  ed.),  316. 

"In  legal  contemplation,  a  gift  to  a  class  is  a  gift 
of  an  aggregate  sum  to  a  body  of  persons  uncertain 
in  number  at  the  time  of  the  gift,  to  be  ascertained 
at  a  future  time,  who  are  all  to  take  in  equal  or  in 
some  other  definite  proportions,  the  share  of  each 
being  dependent  for  its  amount  upon  the  ultimate 
number.  (1  Jarman  on  Wills  [5th  ed.],  269.)  Here 
the  number  of  persons  was  certain  at  the  time  of  the 
gift,  the  share  each  was  to  receive  was  also  certain, 
was  in  no  way  dependent  for  its  amount  upon  the 


212  TESTAMENTARY   FORMS 

number  who  should  survive,  and,  hence,  this 
case  is  not  within  the  principle  invoked."  Matter 
of  Kimberly,  150  N.  Y.  90,  93.  The  testator  should 
make  his  intention  clear  as  to  survivorship  and  as 
to  descendants  of  a  deceased  member  of  the  class. 

"A  number  of  persons  are  popularly  said  to  form 
a  class  when  they  can  be  designated  by  some  general 
name,  as  '  children/  '  grandchildren,' '  nephews  ';  but 
in  legal  language  the  question  whether  a  gift  is  one 
to  a  class  depends  not  upon  these  considerations, 
but  upon  the  mode  of  gift  itself,  namely,  that  it  is 
a  gift  of  an  aggregate  sum  to  a  body  of  persons 
uncertain  in  number  at  the  time  of  the  gift,  to  be 
ascertained  at  a  future  time,  and  who  are  all  to 
take  in  equal  or  in  some  other  definite  proportions, 
the  share  of  each  being  dependent  for  its  amount 
upon  the  ultimate  number  of  persons."  1  Jarman 
on  Wills,  336.  If  the  names  of  legatees  are  given 
the  gift  is  generally  held  to  be  to  them  as  individ- 
uals. "  Where  a  particular  estate  or  interest  is 
carved  out,  with  a  gift  over  to  the  children  of 
the  person  taking  that  interest,  or  the  children  of 
any  other  person,  such  gift  will  embrace  not  only 
the  objects  living  at  the  death  of  the  testator,  but 
all  who  may  subsequently  come  into  existence  be- 
fore the  period  of  distribution."  2  Jarman  on 
Wills  (6th  Am.  ed.),  1011. 

"Where  there  is  no  gift,  by  a  direction  to  pay  and 
divide  at  a  future  time  or  on  a  given  event,  the  vest- 
ing will  be  postponed  until  the  time  appointed  for 
the  division  or  the  happening  of  the  specified  event; 


DESCRIPTION    OF   LEGATEES  213 

unless  a  contrary  intent  can  be  collected  from  the 
whole  will. 

"And  where  legacies  are  given  to  a  class,  all  are 
deemed  to  be  comprehended  who  answer  the  de- 
scription at  the  tune  the  legacy  is  payable,  so  that 
where  the  legacy  is  payable  at  a  future  tune,  those 
who  come  into  being  intermediate  the  death  of  the 
testator  and  the  time  of  payment,  and  answer  the 
description,  take  as  independent  objects."  Kil- 
patrick  v.  Barren,  125  N.  Y.  751,  754. 

"Where  the  period  of  distribution  is  postponed 
until  the  attainment  of  a  given  age  by  the  children, 
the  gift  will  apply  to  those  who  are  living  at  the 
death  of  the  testator,  and  who  come  into  existence 
before  the  first  child  attains  that  age,  i.  e.  the  period 
when  the  fund  becomes  distributable  in  respect  of 
any  one  object,  or  member  of  the  class.  And  the 
result  is  the  same  where  the  expression  is  '  all  the 
children.'  "  2  Jarman  on  Wills  (6th  Am.  ed.),  1015. 
If  children  born  after  the  first  child  attains  the 
given  age  are  to  be  included,  appropriate  language 
should  be  used. 

As  to  a  plurality  of  persons,  if  a  gift  is  made,  say 
of  fifty  thousand  dollars,  to  children,  grandchildren, 
issue,  etc.,  collectively,  and  not  of  that  amount  to 
each,  the  intention  should  clearly  appear.  De 
Nottebeck  v.  Astor,  13  N.  Y.  98. 

A  form  like  the  following  may  be  used: 

I  give  to  my  five  grandchildren,  the  children  of 
my  daughter  A.  B.,  the  sum  of  fifty  thousand 


214  TESTAMENTARY   FORMS 

dollars  collectively  to  be  equally  divided  among 
them,  that  is,  each  grandchild  to  receive  one  fifth 
of  said  fifty  thousand  dollars. 

In  all  cases  of  gifts  to  youngest  or  oldest  sons,  etc., 
it  should  be  clearly  stated  in  the  will  whether  is 
meant  the  youngest  or  oldest  son  living  at  the  time 
of  making  the  will,  or  at  the  death  of  the  testator, 
or  at  some  future  time.  1  Williams  on  Executors 
(10th  Eng.  ed.),  849. 

"The  presumption  that,  as  a  will  speaks  from  the 
death  of  the  testator,  it  refers  to  the  state  of  things 
then  existing,  must  yield  when  the  will  manifests 
the  testator's  intention  to  refer  to  the  state  of  things 
existing  at  the  tune  of  making  it."  Where  the 
devise  was  to  "the  surviving  children,  not  knowing 
all  their  names,  of  my  late  sister  A.,  they  living  in 
the  State  of  Maine,  to  be  divided  equally  between 
them  all,"  it  was  held  that  the  language  of  the  gift 
showed  that  the  testatrix  would  have  given  it  to 
them  by  name  if  she  had  known  what  their  names 
were,  and  must  have  the  same  effect  as  if  she  had; 
and  that  the  clause,  "they  living  in  the  State  of 
Maine,"  was  added  by  way  of  description  of  the 
children  then  living,  and  not  to  limit  the  gift  to 
those  who  might  happen  to  live  in  that  State  at  the 
time  of  the  death  of  the  testatrix.  Morse  v.  Mason, 
11  Allen,  36. 

"When  the  taking  effect  of  the  gift  is  postponed 
beyond  the  time  of  the  testator's  death,  then  those 
who  come  within  the  description,  before  the  period 


DESCRIPTION   OF   LEGATEES  215 

or  event  upon  which  the  gift  is  to  take  effect,  or  the 
distribution  is  to  be  made,  will  ordinarily  be  in- 
cluded as  within  the  probable  intention  of  the 
testator."  Worcester  v.  Worcester,  101  Mass.  128, 
132. 

A  legacy  "to  the  children  of  my  deceased  brothers 
and  sisters"  of  "all  the  rest  of  said  stock  or  securi- 
ties, to  be  divided  among  them  as  provided  in  the 
statutes  of  the  Commonwealth  in  such  cases  made 
and  provided,"  was  held  to  mean  a  division  accord- 
ing to  the  statute  of  distributions.  Paine,  Petr., 
176  Mass.  242.  "Heirs"  may  be  construed  to  mean 
"children."  Haley  v.  Boston,  108  Mass.  576,  579. 
"Issue"  may  be  limited  to  "children."  Sibley  v. 
Perry,  7  Ves.  522;  Pruen  v.  Osborne,  11  Sim.  132. 
In  many  jurisdictions  brothers  and  sisters  include 
half  brothers  and  sisters. 

"Prima  fade  the  word  'cousin'  means  first  cousin, 
and  not  a  first  cousin  once  or  more  tunes  removed; 
still  less  does  it  mean  a  second  or  third  cousin, 
which  might  go  on  indefinitely."  Stevenson  v. 
Abingdon,  31  Beav.  305,  308.  "Those  only  who 
have  either  the  same  great-grandfather  or  the  same 
great-grandmother  are  second  cousins  to  each 
other."  Bridgnorth  v.  Collins,  15  Sim.  538,  541. 
A  testator  gave  one  third  of  his  property  to  his  first 
cousins  and  two  thirds  to  his  second  cousins.  At 
his  death  he  left  first  cousins,  second  cousins,  and 
children  and  grandchildren  of  first  cousins.  It  was 
held  that  the  term  "second  cousins"  did  not  include 


216  TESTAMENTARY   FORMS 

children  or  grandchildren  of  first  cousins.     In  re 
Parker,  17  Ch.  D.  262. 

Many  nice  points  arise  as  to  adopted  children. 
Their  rights  are  almost  entirely  statutory.  The 
draftsman  should  examine  local  statutes  to  see  if 
they  provide  that  adopted  children  take  under  a 
gift  to  " children"  or  "issue";  whether  adoption 
acts  as  a  revocation  of  a  prior  will;  whether  it  has 
the  same  effect  as  the  birth  of  a  child;  and  whether 
by  adoption  a  person  loses  his  right  to  inherit  from 
his  natural  parents  or  kindred.  The  draftsman 
should  inquire  of  the  testator  as  to  adopted  children, 
and,  if  there  are  any,  make  careful  provision  rela- 
tive thereto. 

Wills  often  contain  provisions  like  the  following: 

Issue  and  Children. 

The  words  "issue"  and  "children,"  whenever  used 
in  this  will,  are  intended  to  mean  issue  and  children 
by  birth  and  blood  and  not  by  adoption. 

Whenever  the  words  "child,"  "children,"  and 
"issue"  occur  in  this  will  they  shall  be  taken  to 
mean  child,  children,  and  issue  both  by  blood  and 
adoption. 

Illegitimate  children  generally  inherit  from  their 
mother.  Statutes  sometimes  provide  that  an  illegiti- 
mate child  shall  be  heir  of  his  mother  and  of  any 
maternal  ancestor,  and  that  the  lawful  issue  of  an 


DESCRIPTION   OF   LEGATEES  217 

illegitimate  person  shall  represent  such  person,  and 
take  by  descent  any  estate  which  such  person  would 
have  taken  if  living;  also  that  it  an  illegitimate 
child  dies  intestate,  and  without  issue  who  may 
lawfully  inherit  his  estate,  such  estate  shall  descend 
to  his  mother,  or,  if  she  is  not  living,  to  the  persons 
who  would  have  been  entitled  thereto  by  inheritance 
through  his  mother  if  he  had  been  a  legitimate  child; 
also  that  an  illegitimate  child  whose  parents  have 
intermarried,  and  whose  father  has  acknowledged 
him  as  his  child,  shall  be  considered  legitimate.  It 
has  been  held  that,  an  illegitimate  son  must  be  re- 
garded within  the  meaning  of  a  will  as  the  "heir  by 
blood"  of  his  mother.  Hayden  v.  Barrett,  172  Mass. 
472.  This  subject  may  demand  the  attention  of 
attorneys  in  drawing  wills. 

In  a  general  sense  the  word  "issue"  is  regarded 
as  equivalent  to  descendants.  Underbill  on  Wills, 
§  669;  but  is  often  limited  to  children.  2  Jarman 
on  Wills  (6th  Am.  ed.),  949.  "Thus,  if  the  devise  or 
bequest  be  to  the  children  of  A.  living  at  a  given 
period,  with  a  direction  that  the  issue  of  any  child 
dying  before  that  period  shall  take  then-  parent's 
share,  the  gift  to  issue  is  confined  to  grandchildren 
of  A.  And  the  rule  is  the  same  if  the  gift  be  to  the 
children  of  A.  living  at  a  given  period,  and  the 
issue  of  such  as  shall  be  then  dead,  such  issue  to 
take  their  parent's  share;  although  the  gift  to  issue 
is  distinct  from  the  direction  as  to  taking  the  share 
of  the  parent."  Hawkins  on  Wills  (2d  Am.  ed.), 


218  TESTAMENTARY   FORMS 

88.    Issue  generally  take  per  capita  unless  a  different 
intention  is  expressed. 

"By  a  gift  either  to  the  children  of  several  persons, 
or  to  a  person  described  as  standing  in  a  certain 
relation  to  the  testator  and  the  children  of  another 
person  standing  in  the  same  relation,  the  objects  of 
the  gift  take  per  capita  and  not  per  stirpes  (by  right 
of  representation);  and  therefore  in  the  latter  case 
each  child  of  the  second  person  takes  a  share  equal 
to  the  share  of  the  first  person."  But  "this  mode  of 
construction  will  yield  to  a  very  faint  glimpse  of 
a  different  intention  in  the  context."  Balcom  v. 
Haynes,  14  Allen,  204,  205. 

"The  court  are  of  opinion,  that,  according  to  the 
established  rule  of  law,  a  devise  to  '  heirs/  whether 
it  be  to  one's  own  heirs,  or  to  the  heirs  of  a  third 
person,  designates  not  only  the  persons  who  are  to 
take,  but  also  the  manner  and  proportions  in  which 
they  are  to  take;  and  that,  when  there  are  no  words 
to  control  the  presumption  of  the  will  of  the  testator, 
the  law  presumes  his  intention  to  be,  that  they  shall 
take  as  heirs  would  take  by  the  rule  of  descent.  .  .  . 
1  Roper  on  Leg.  (1st  Amer.  ed.)  126;  2  Jarman  on 
Wills,  46.  Such  presumption,  however,  will  easily 
be  controlled,  by  any  words  in  the  will,  indicating 
a  different  intention  of  the  testator;  as  if,  after  a 
devise  to  'heirs/  it  be  added,  'in  equal  shares/  or 
'share  and  share  alike/  or  'to  them  and  each  of 
them/  or  'equally  to  be  divided/  or  any  equivalent 
words,  intimating  an  equal  division,  then  they  will 


DESCRIPTION   OF   LEGATEES  219 

take  per  capita,  each  in  his  own  right.  But  when 
there  are  no  such  words,  the  presumption  is,  that 
the  testator  referred  to  the  familiar  law  of  descents 
and  distributions,  to  regulate  the  distribution  of 
his  bequest."  Daggett  v.  Slack,  8  Met.  450,  453, 
454. 

In  Massachusetts  a  statute  provides  "Inheritance 
or  succession  by  right  of  representation  is  the  taking 
by  the  descendants  of  a  deceased  heir  of  the  same 
share  or  right  in  the  estate  of  another  person  as 
their  parent  would  have  taken  if  living.  Posthumous 
children  shall  be  considered  as  living  at  the  death  of 
their  parent."  Rev.  Laws,  c.  133,  §  6. 

"Under  gifts  to  a  class  the  members  of  that  class 
take  per  capita.  Where  a  gift  is  to  the  children  of 
several  persons,  they  take  per  capita,  not  per  stirpes. 
The  same  rule  applies  where  the  gift  is  made  to  one 
person  and  the  children  of  another;  so,  also,  if  the 
gift  is  to  two  or  more  persons  and  their  children,  or 
to  a  class  and  their  children.  All  persons  coming 
within  such  description,  whether  parents  or  children, 
take  equally  per  capita,  but  slight  evidences  of  a 
contrary  intention  would  seem  sufficient  to  produce 
a  different  result."  Remsen  on  Wills,  95.  See 
Ferrer  v.  Pyne,  81  N.  Y.  281.  In  Tucker's  Manual 
of  Wills  (2d  ed.),  113-115,  will  be  found  many  Massa- 
chusetts cases  on  this  subject.  The  attorney  should 
call  this  matter  to  the  attention  of  the  testator,  and 
where  the  words  "  children,"  "  heirs,"  etc.,  are  used 
it  should  clearly  appear  in  the  will  whether  they  are 


220  TESTAMENTARY   FORMS 

to  take  per  capita  or  per  stirpes,  that  is,  by  right  of 
representation. 

"It  remains  to  determine  who  shall  take  under  the 
gift  to  'the  heirs  of  my  children.'  It  is  contended  in 
behalf  of  the  widow  of  the  deceased  son,  that  these 
words  should  be  read  in  a  double  sense,  so  as  to 
mean  the  heirs-at-law  hi  relation  to  the  real  estate, 
and  those  persons  who  would  be  entitled  under  the 
statute  of  distributions  in  relation  to  the  personal 
estate;  as  was  done  in  Keay  v.  Boulton,  25  Ch.  D. 
212,  and  Wingfield  v.  Wingfield,  9  Ch.  D.  658.  No 
general  rule  can  be  stated  under  which  all  the  deci- 
sions can  be  classified.  But  in  general,  where  there 
is  a  gift  to  a  person  or  his  heirs,  the  word  'heirs' 
denotes  succession  or  substitution;  the  gift  being 
primarily  to  the  person  named,  or,  if  he  is  dead, 
then  to  his  heirs  in  his  place.  In  such  cases,  it  has 
often  been  held  that  the  word  '  heirs '  should  be  con- 
strued to  mean  the  persons  who  would  legally  suc- 
ceed to  the  property  according  to  its  nature  or 
quality;  and  that  the  heirs-at-law  would  take  the 
real  estate,  and  the  next  of  kin  or  persons  entitled 
to  inherit  personalty  would  take  the  personal  estate. 
Such  were  the  cases  amongst  others,  of  Keay  v. 
Boulton  and  Wingfield  v.  Wingfield,  above  cited, 
of  Vaux  v.  Henderson,  1  Jac.  &  W.  388,  and  of  Doody 
v.  Higgins,  9  Hare,  App.  xxxii.  But  where  the  gift 
is  directly  to  the  heirs  of  a  person,  as  a  substantive 
gift  to  them  of  something  which  their  ancestor  was 
in  no  event  to  take,  this  element  of  succession  or 
substitution  is  wanting,  and  the  heirs  take  as  the 


DESCRIPTION   OF   LEGATEES  221 

persons  designated  in  the  instrument  to  take  in  their 
own  right;  and  in  such  cases  the  courts  have  usually 
held  that  the  word  'heirs'  must  receive  the  meaning 
which  it  bears  at  common  law,  as  the  persons  en- 
titled to  succeed  to  real  estate  in  case  of  intestacy. 
De  Beauvoir  v.  De  Beauvoir,  3  H.  L.  Cas.  524; 
Forster  v.  Sierra,  4  Ves.  766;  Swaine  v.  Burton,  15 
Ves.  365;  Mounsey  v.  Blamire,  4  Russ.  384.  This 
distinction  was  recognized  in  this  State  hi  Clarke  v. 
Cordis,  4  Allen,  466,  480,  where  the  court,  in  speak- 
ing of  the  word  '  heirs '  as  used  in  the  will  then  under 
consideration,  said:  'It  was  not  intended  to  denote 
succession,  that  is,  to  vest  the  estate  hi  the  legatees 
as  successors  of  or  substitutes  for  the  sons  of  the 
testator,  so  that  they  would  take  the  same  estate 
in  nature  and  quality  as  that  which  would  have  come 
to  them  by  descent.  They  are  to  take  by  force  of 
the  will  as  purchasers.  The  word  is  used  to  designate 
the  persons  who  are  to  take  the  real  and  personal 
estate  as  independent  objects  of  the  gift.  It  is 
therefore  to  be  interpreted  as  a  mere  term  of 
description  of  a  class  of  persons  who  .  .  are  to  take 
the  estate."  Fabens  v.  Fabens,  141  Mass.  395,  399, 
400. 

If  it  is  the  testator's  intention  that  those  who 
are  his  "heirs-at-law"  at  the  tune  of  the  decease  of 
the  life  tenant  are  to  take  the  estate  discharged  of 
all  trust,  appropriate  language  should  be  used,  such 
as  "Those  who  are  my  heirs-at-law  at  the  time  of 
the  decease  of  the  life  tenant  and  not  those  who  are 
my  heirs-at-law  at  the  time  of  my  own  decease." 


222  TESTAMENTARY   FORMS 

The  words  "heirs  and  assigns"  hi  a  legacy  are 
generally  words  of  limitation.  Bryson  v.  Holbrook, 
159  Mass.  280.  The  meaning  of  the  word  "heirs" 
hi  a  bequest  of  personal  property  "must  be  governed 
by  the  intent  of  the  testator;  and  if  his  intent  ap- 
pears to  be  to  designate  those  who  are  strictly  his 
heirs  in  the  primary  sense  of  the  term,  and  not  dis- 
tributees, it  must  be  so  construed."  Sweet  v.  Dut- 
ton,  109  Mass.  589,  591. 

"The  words  'next  of  kin'  are  limited  in  legal 
meaning,  as  hi  common  use,  to  blood  relations,  and 
do  not  include  a  husband  or  a  wife,  unless  accom- 
panied by  other  words  clearly  manifesting  a  purpose 
to  extend  their  significance;  and  the  mere  addition 
of  a  reference  to  the  statute  of  distributions  is  not 
sufficient.  Withy  v.  Mangles,  4  Beav.  358;  10  Cl.  & 
Fin.  215;  2  Jarman  on  WiUs  (3d  Eng.  ed.)  96." 
Haraden  v.  Larrabee,  113  Mass.  430,  431.  But  see 
Pinkham  v.  Blair,  57  N.  H.  226. 

"Much  divergence  of  opinion  existed  in  the  early 
cases  as  to  the  construction  of  the  words  'next  of 
kin.'  If  the  testator,  hi  a  gift  to  the  next  of  kin, 
refers  expressly  or  by  implication  to  the  statute  of 
distribution,  he  will  be  conclusively  presumed  to 
mean,  by  next  of  kin,  those  persons  only  who  take 
personal  property  under  that  statute.  On  the  other 
hand,  where  the  gift  is  simply  to  the  next  of  kin, 
without  any  reference  to  the  statute,  the  rule  now 
is  that  the  testator  means  his  nearest  relations.  He 
means  those  persons  who  are  most  nearly  related  to 


DESCRIPTION   OF   LEGATEES  223 

him  by  consanguinity.  Thus,  suppose  a  testator 
shall  leave  him  surviving  two  brothers,  and  the 
children  of  another  brother  who  is  deceased.  The 
question  arises,  who  are  to  take  under  these  cir- 
cumstances as  next  of  kin?  The  rule  of  the  civil 
law  is  employed  in  determining  who  are  the  next  of 
kin,  and  this  law  traces  descent  from  the  testator 
as  the  propositus,  and  not  from  the  common  ancestor. 
The  brothers  are  equally  related  to  the  testator  in 
the  first  degree,  the  nephews  and  nieces  hi  the 
second;  and  the  former  take  as  nearest  of  kin, 
where  no  reference  is  made  to  the  statute,  while  the 
latter  are  excluded. 

"Where  several  persons  answer  to  the  description 
'next  of  kin/  and  are  related  to  the  testator  or 
other  propositus  in  equal  degrees,  they  take,  at 
common  law,  as  joint  tenants.  This  was  so  decided 
where  a  gift  to  the  next  of  kin  was  construed  to  go 
to  the  father  and  the  children  of  the  testator,  who 
were  his  next  of  kin  at  the  civil  law.  As  a  conse- 
quence of  this  rule  of  construction,  by  which  the 
term  'next  of  kin'  simplidter  is  not  regarded  as 
synonymous  with  distributees  under  the  statute  of 
distribution,  all  who  are  equally  related  to  a  common 
propositus  will  take,  though  some  of  them  could 
not  take  under  the  statute.  Thus,  where  the  testa- 
mentary provision  is  for  the  next  of  kin  simply,  and 
the  propositus  has  died  leaving  a  father,  a  mother 
and  also  a  child,  all  of  whom  are  of  course  related  to 
him  in  equal  degrees  of  consanguinity,  they  will 
share  equally;  though,  under  the  statute,  the  child 


224  TESTAMENTARY   FORMS 

would  have  taken  all  as  a  sole  distributee."  Under- 
bill on  Wills,  §  626. 

That  the  term  next  of  kin  ordinarily  includes  ances- 
tors as  well  as  descendants  in  the  same  degree  of  con- 
sanguinity, see  2  Jarman  on  Wills  (6th  Am.  ed.),  954. 

"A  devise  or  bequest  to  'next  of  kin,'  '  next  of  kin 
according  to  the  statute/  etc.,  means  the  next  of  kin 
at  the  death  of  the  person  whose  next  of  kin  are  spoken 
of.  Gundry  v.  Pinniger,  1  D.  M.  &  G.  502;  Bird  v. 
Luckie,  8  Hare,  301;  Bullock  v.  Downes,  9  H.  L.  C.  1. 

"Thus  if  the  gift  be  to  A.  for  life,  and  after  his 
decease  to  the  next  of  kin  of  the  testator,  the  persons 
to  take  as  next  of  kin  are  to  be  ascertained  at  the 
death  of  the  testator,  and  not  at  the  death  of  A. 

"And  the  rule  applies,  although  the  tenant  for  life 
be  the  sole  next  of  kin,  or  one  of  the  next  of  kin,  at 
the  death  of  the  testator  and  at  the  date  of  the  will. 
Thus,  if  the  gift  be  to  A.  for  life,  and  after  his  decease 
to  the  next  of  kin  of  the  testator,  and  A.  is  the  sole 
next  of  kin  at  the  death,  A.  takes  the  property  abso- 
lutely. Hollo  way  v.  Hollo  way,  5  Ves.  399;  Ware  v. 
Rowland,  2  Phill.  635;  Lee  v.  Lee,  1  Dr.  &  Sm.  85; 
Wharton  v.  Barker,  4  K.  &  J.  498."  Hawkins  on 
Wills  (2d  ed.),  99,  100. 

"A  gift  to  'descendants'  receives  a  construction 
answering  to  the  obvious  sense  of  the  term;  namely, 
as  comprising  issue  of  every  degree."  2  Jarman  on 
Wills  (6th  Am.  ed.),  943. 

The  word  "descendants"  in  a  will  includes  none 
but  lineal  heirs,  in  the  absence  of  any  intention  ex- 


DESCRIPTION   OF   LEGATEES  225 

pressed  in  the  will  to  extend  its  meaning.    Baker  v. 
Baker,  8  Gray,  101,  119. 

"The  word  'descendant'  according  to  its  accurate, 
lexicographical  and  legal  meaning,  designates  the 
issue  of  a  deceased  person,  and  does  not  describe  the 
child  of  a  parent  who  is  still  living.  The  word 
is  the  correlative  of  ancestor."  Hillen  v.  Iselin,  144 
N.  Y.  365,  374.  As  to  descendants  taking  per  capita 
under  gift  to  descendants  equally,  see  2  Jannan  on 
Wills,  945.  The  intent  should  be  expressed  by  using 
the  phrases  per  stirpes  or  per  capita. 

The  use  of  the  word  "family"  in  a  will  should  be 
avoided,  if  possible;  but  if  used,  care  should  be  taken 
to  make  the  intention  clear.  "  The  meaning  of  the 
word  'family'  is  always  to  be  gathered  from  the 
whole  will,  read  hi  the  light  of  the  circumstances  sur- 
rounding its  execution.  It  is  a  word  of  very  flexible 
meaning,  depending  upon  the  intention  of  the  testa- 
tor. It  is  often  difficult  to  determine  what  persons 
he  intends  to  be  included  under  the  term. 

"The  word  has  several  ordinary,  and,  we  may  say, 
primary  meanings.  It  may  mean  those  who  live 
under  the  same  roof  with  the  paterfamilias;  that 
is,  his  household,  his  wife,  children  and  servants. 
This  is  not  its  ordinary  meaning  as  used  in  wills. 
It  may  also  mean  a  man's  wife  and  children,  and 
this  is  a  very  common  meaning  in  wills.  Again,  the 
word  is  often  used,  particularly  where  a  person, 
whose  family  is  spoken  of,  has  no  wife  or  children, 
to  indicate  his  or  her  brothers  and  sisters,  or  his 


226  TESTAMENTARY   FORMS 

statutory  next  of  kin;  and  sometimes,  in  a  very 
wide  sense,  to  indicate  the  family  stock;  that  is, 
those  persons  of  the  same  name  who  are  descended 
from  a  common  though  remote  ancestor. 

"Under  some  circumstances  a  gift  of  personal 
property  to  the  family  of  the  testator,  or  to  the 
family  of  some  other  person,  may  be  void  for  un- 
certainty as  to  whom  the  testator  intends.  Thus, 
where  the  testator  gave  a  remainder  in  personal 
property  to  be  divided  among  her  daughters  and 
'their  husbands  and  families,'  where  the  gifts  were 
'to  T.  H.  forever,  hoping  he  will  continue  them  in 
the  family,'  where  the  gift  was  one-half  to  the 
family  of  the  testator's  wife  and  one-half  to  his 
brothers'  and  sisters'  family  equally  to  be  divided, 
the  gift  is  void  for  uncertainty.  The  cases  hi  which 
a  provision  for  a  family  has  been  held  void  for  uncer- 
tainty are  not  numerous,  and  the  courts,  in  modern 
times  particularly,  strain  after  a  construction  which 
will  make  a  gift  to  a  family  effectual."  2  Underhill 
on  Wills,  §  585.  "The  testator  directed  a  house  to 
be  purchased,  at  a  cost  not  exceeding  one  thousand 
dollars,  to  be  held  in  trust  for  the  benefit  of  A.  D. 
during  his  life,  and  to  be  conveyed  to  his  family  at 
his  death.  The  gift  in  remainder  to  'his  family' 
did  not  lapse  by  his  death  in  the  lifetime  of  the 
testator.  'His  family,'  in  the  absence  of  words 
manifesting  a  different  intention,  must  be  taken  to 
mean  his  widow  and  child;  Bowditch  v.  Andrew, 
8  Allen,  339,  342;  and  not  to  include  his  stepson." 
Bates  v.  Dewson,  128  Mass.  334,  335. 


DESCRIPTION   OF   LEGATEES  227 

The  use  of  the  words  "relations"  or  "relatives" 
is  not  to  be  encouraged.  "No  person  can  regularly 
answer  the  description  of  'relations'  but  those  who 
are  akin  to  the  testator  by  blood;  and,  consequently, 
relations  by  marriage  are  not  included  in  a  bequest 
to  'relations'  generally.  A  wife,  therefore,  cannot 
regularly  claim  under  a  bequest  to  her  husband's 
relations,  nor  a  husband  as  a  relation  to  his  wife." 
2  Williams  on  Executors,  397.  "As  it  [relations]  is 
employed  in  wills  it  is  construed  to  mean  those  per- 
sons who  would,  by  virtue  of  the  statute,  take  the 
personal  property  of  an  intestate  as  his  next  of  kin." 
2  Underbill  on  Wills,  §  589.  See  also  §§  590-594. 

The  ordinary  meaning  of  the  words  "legal  repre- 
sentatives" is  executors  and  administrators.  In  re 
Best's  Trusts,  L.  R.  18  Eq.  686;  Cox  v.  Curwen,  118 
Mass.  198.  But  "legal  representatives"  may  refer  to 
heirs  or  to  others  who  represent  rights  by  succession 
under  a  conveyance.  Thayer  v.  Pressey,  175  Mass. 
225,  236;  Olney  v.  Levering,  167  Mass.  446,  448. 

The  words  "survivors"  or  "survivor"  should  not 
be  used  without  a  definite  expression  of  the  testator's 
intention.  It  should  clearly  appear  whether  "sur- 
vivorship" at  the  testator's  death  or  at  some  sub- 
sequent period  of  distribution  is  referred  to. 

As  to  "survivorship"  in  the  case  of  contingent 
remainders  see  p.  192.  As  to  the  doctrine  of  "accru- 
ing shares,"  and  as  to  whether  "survivors"  includes 
"others,"  see  pp.  436  et  seq. 


228  TESTAMENTARY    FORMS 

It  is  always  better,  in  using  the  terms  "husband," 
"wife,"  etc.,  to  mention  the  "wife"  or  "  husband"  by 
name;  otherwise  the  term,  in  either  case,  may  apply 
to  the  individual  who  answers  the  description  at 
the  date  of  the  will. 

As  to  a  man  or  woman  taking  a  legacy  by  the  name 
of  "husband"  or  "wife,"  although  merely  a  reputed 
and  not  a  lawful  "husband"  or  "wife,"  see  2  Williams 
on  Executors  (Am.  ed.),  1015;  Hardy  v.  Smith, 
136  Mass.  328;  Pastene  v.  Bonine,  166  Mass.  85; 
Miller  v.  Miller,  79  Hun,  197. 

The  words  "executors  and  administrators"  should 
be  used  with  care.  "A  gift  to  A.,  and  in  case  of  his 
death  to  his  executors  or  administrators,  will  go 
to  A.'s  executors  in  the  event  of  his  death  before 
the  testator."  Theobald  on  Wills  (7th  ed.),  347. 
"It  is  clear  that  a  bequest  to  A.  and  his  executors, 
or  to  A.  and  his  representatives,  gives  A.  the  absolute 
interest,  the  additional  words  being  merely  words  of 
limitation.  ...  So,  too,  a  gift  to  A.  for  life  and 
then  to  his  executors  or  administrators,  or  to  his 
personal  representatives,  gives  A.  the  absolute  in- 
terest." Theobald  on  Wills  (7th  ed.),  476. 

Description  of  Legacies. 

The  rule  laid  down  as  to  accuracy  of  description 
of  real  estate  (p.  146)  is  of  equal  importance  in  the 
case  of  personal  property. 

"My  property,"  "my  estate,"  "my  whole  estate," 
are  terms  which,  in  their  ordinary  import,  carry  both 


DESCRIPTION    OF   LEGACIES  229 

real  and  personal  property.  .  Chapman  v.  Chick,  81 
Me.  109,  117;  Laing  v.  Barbour,  119  Mass.  523,  525. 

One  will  may  adopt  the  provisions  of  another  will 
as  to  a  legacy,  without  reciting  at  length  the  pro- 
visions in  regard  to  it.  Dexter  v.  Harvard  College, 
176  Mass.  192,  198.  Nevertheless  great  care  should 
be  taken  in  the  description  and  in  the  expression  of 
intention.  In  the  above  case  the  will  contained  two 
provisions  in  point,  the  first,  a  bequest  to  the  presi- 
dent and  fellows  of  Harvard  College,  to  be  held  on 
the  same  terms  as  the  residue  of  the  testatrix's 
brother's  estate,  and  the  second,  a  bequest  of  the 
residue  of  her  estate,  "to  be  added  to  and  disposed 
of  as  part  of  and  in  the  same  manner  as  the  per- 
manent fund  and  bequest  of  fifty  thousand  dollars 
made  and  given  by  my  brother  Calvin  Ellis,  by  his 
last  will." 

In  most  cases  it  is  advisable  to  dispose  directly 
of  wearing  apparel,  watches,  jewelry,  etc.  A  gift  in 
a  will  of  a  homestead,  "with  the  household  furni- 
ture, silver  ware,  musical  instruments,  books,  pic- 
tures, horses,  carriages,  sleighs,  harnesses,  etc., 
used  in  connection  therewith,"  was  held  not  to  in- 
clude a  watch  and  chain.  Woodcock  v.  Woodcock, 
152  Mass.  353. 

A  form  like  the  following  may  be  used  in  most 
cases : 

I  give  my  wearing  apparel,  watches,  jewelry  and 
other  personal  effects  of  a  similar  nature  to  my  wife 
A.  B.  While  the  same  are  to  be  hers  absolutely  I 


230  TESTAMENTARY   FORMS 

trust  she  will  reserve  whatever  articles  she  may  de- 
sire as  keepsakes  and  distribute  the  rest  among  our 
children  as  in  her  judgment  she  may  deem  best. 

As  the  term  "household  furniture"  is  susceptible 
of  a  very  liberal  construction  of  intention,  a  testator 
should  be  explicit  in  the  expression  of  intention  in 
bequeathing  all  household  effects.  "A  bequest  of 
household  goods  and  furniture,  unexplained,  in- 
cludes everything  that  is  usually  enjoyed  with  the 
house  —  carpets,  stoves,  china,  silver  ware,  bedding, 
table  linen,  etc.,  and  would  not  include  books  in  the 
library,  stock  hi  trade,  nor  jewelry  or  other  articles 
of  personal  use  and  ornaments.  Kitchen  supplies, 
such  as  wines,  spices,  vegetables,  etc.,  do  not  pass 
under  a  bequest  of  furniture."  Rood  on  Wills,  §  498. 

If  the  testator  desires  to  include  in  the  bequest 
personal  property  out  of  the  house,  such  as  horses, 
carriages,  farming  tools,  etc.,  they  should  be  care- 
fully mentioned. 

Where  the  bequest  of  the  furniture,  plate,  etc., 
as,  for  example,  to  the  testator's  wife  or  family, 
accompanies  the  devise  of  the  house  in  which  they 
were  used,  all  the  usual  contents  of  the  house  will  be 
included.  Richardson  v.  Hall,  124  Mass.  228,  237. 
But  where  they  are  given  to  one,  and  the  house  to 
another,  they  should  be  definitely  described.  In 
such  case  a  conflict  may  easily  arise  as  to  those 
household  effects  which  partake  of  the  nature  of 
fixtures.  See  p.  150. 

The  following  are  offered  as  forms: 


DESCRIPTION    OF   LEGACIES  231 

Furniture,  etc. 

I  give  and  bequeath  to  etc.  all  the  furniture  in 
my  residence,  No.  92  Wadlaw  Street,  at  the  time  of 
my  decease,  including  my  library,  paintings,  pic- 
tures, statuary,  plate,  bric-a-brac,  carpets,  chairs  of 
every  description,  beds,  bedding,  bookcases,  linen, 
silver,  china,  crockery,  wines,  cooking  utensils, 
consumable  stores  and  all  other  portable  articles  of 
either  use  or  ornament;  and  all  my  horses,  bicycles, 
automobiles,  carriages  and  their  appurtenances,  liv- 
eries, harnesses,  farming  stock,  supplies,  tools,  hay 
and  gram  and  all  other  articles  of  use  or  orna- 
ment that  may  be  hi  or  about  my  stable  at  the 
tune  of  my  decease. 

I  give  and  bequeath  to  etc.,  all  the  furniture, 
useful  and  ornamental,  and  all  consumable  stores 
in  my  residence  on  Myrtle  Street  at  the  time  of  my 
decease,  and  all  my  horses,  bicycles,  automobiles, 
carriages  and  appurtenances,  farming  tools  and  im- 
plements and  all  other  objects  ornamental  or  use- 
ful that  may  be  in  my  stable  and  on  and  about 
my  premises  at  the  time  of  my  decease. 

I  give  and  bequeath  to,  etc.,  all  and  singular  the 
household  goods  and  furniture,  stable  appurte- 
nances and  equipments  and  the  garden  and  agri- 
cultural paraphernalia  pertaining  and  belonging  to 
my  city  and  country  establishments  at  the  tune  of 
my  decease,  including  books,  bookcases,  plate,  sil- 
ver, china,  statuary,  pictures,  paintings,  consum- 


232  TESTAMENTARY   FORMS 

able  and  domestic  stores  and  all  other  household 
articles,  horses,  bicycles,  automobiles,  carriages 
and  all  their  appurtenances,  stable  and  farm 
utensils,  furniture,  tools,  implements  and  machin- 
ery, wagons,  etc. 

I  give  and  bequeath  to  etc.,  all  the  furniture  in 
my  residence,  etc.,  including  all  articles  and  objects 
whether  useful  or  ornamental,  all  the  horses  and 
carriages,  and  their  appurtenances,  equipments  and 
belongings  and  all  other  personal  property  in  and 
about  my  stable  adjacent  to  my  said  residence,  the 
conservatories,  hot-houses  and  garden  appurte- 
nances upon  the  premises  and  all  the  tools,  imple- 
ments, etc.,  pertaining  thereto. 

I  give  and  bequeath  to  my  wife  A.  B.  and  my 
three  daughters  C.  D.,  E.  F.  and  G.  H.  all  my 
articles  of  household  furniture,  books,  pictures, 
plate,  jewelry,  wearing  apparel,  watches  etc.,  and 
I  request  them  to  make  such  division  of  the  same 
as  may  be  most  satisfactory  to  them. 

Other  forms  may  be  found  on  pp.  512,  514. 

Sometimes  a  testator  (more  often  a  testatrix) 
after  giving  away  most  of  the  furniture,  provides 
unwisely  but  from  the  best  of  motives,  that  friends 
may  select  from  the  remaining  articles  whatever 
they  desire  as  mementos  or  keepsakes.  It  is  ob- 
vious that  such  a  provision  is  likely  to  give  rise  to 
discontent  and  perhaps  quarrels.  However,  in  the 


DESCRIPTION    OF   LEGACIES  233 

case  of  immediate  relatives  provisions  like  the  fol- 
lowing may  sometimes  be  advisable: 

I  give  all  my  household  furniture  of  every  kind 
and  description  to  my  wife  A.  B.,  to  be  hers  abso- 
lutely with  the  exception  that  I  authorize  my  sister 
C.  D.  and  my  brother  E.  F.  to  select  the  picture  or 
painting  or  other  work  of  art  that  he  or  she  par- 
ticularly prizes  to  be  his  or  hers  absolutely;  and  I 
direct  my  executors  to  deliver  to  the  said  C.  D.  and 
E.  F.  the  picture,  painting  or  other  work  of  art  so 
selected  and  take  receipts  therefor. 

Great  care  should  be  used  as  to  all  bequests  of 
"goods,"  "effects,"  "articles,"  "chattels,"  or  other 
personal  property  described  as  at  a  particular  place 
or  locality.  See  Williams  on  Executors  (10th  Eng. 
ed.),  927.  For  example,  it  is  unwise  to  give  a  legatee 
"all  the  personal  property  in  my  house  at  the  time  of 
my  decease,"  meaning  household  furniture,  silver, 
personal  effects,  etc.,  because,  if  there  be  other  per- 
sonal property  in  the  house  at  that  time,  such  as 
certificates  of  stock,  a  question  may  arise  as  to 
whether  they  are  included  in  the  legacy.  The  danger 
of  describing  personal  property  by  location  is  set 
forth  in  Rood  on  Wills,  §  517. 

A  gift  in  a  will  of  "my  chest  and  its  contents," 
among  which  is  an  unrecorded  and  undelivered 
deed  of  land  executed  by  the  testator  to  the  devisee 
in  consideration  of  "love  and  affection,"  does  not 
operate  as  a  devise  of  the  land.  Parrott  v.  Avery, 


234  TESTAMENTARY   FORMS 

159  Mass.  594.  A  bequest  of  an  interest  in  a  factory 
was  held  to  be  in  the  shares  of  which  the  interest 
consisted.  Johnson  v.  Goss,  128  Mass.  433,  436. 

The  word  "money"  is  frequently  used  hi  wills, 
but  it  is  a  term  to  be  avoided.  Generally  the  word 
means  money  in  the  real  sense  and  bank  deposits. 
It  may  be  so  used  as  to  mean  demands  payable  hi 
money.  The  term  should  be  avoided,  as  in  many 
cases  where  the  gift  is  of  money  on  hand  or  on  de- 
posit in  bank,  the  testator  may  spend  or  invest  the 
money  before  his  death.  "By  a  gift  or  bequest  of 
money,  notes  of  hand,  and  other  securities  for  the 
payment  of  money  will  not  pass,  unless  it  appears 
by  the  will  that  it  was  the  intention  of  the  testator 
to  bequeath  them."  Morton  v.  Perry,  1  Met.  446, 
448.  The  word  "moneys"  does  not  include  real 
estate.  Parker  v.  lasigi,  138  Mass.  416,  423. 

If  a  reading  of  the  whole  will  produces  a  convic- 
tion that  the  testator  must  necessarily  have  intended 
an  interest  to  be  given  which  is  not  bequeathed  by 
express  and  formal  words,  the  court  must  supply  the 
defect  by  implication,  and  so  mould  the  language  of 
the  testator  as  to  carry  into  effect,  as  far  as  pos- 
sible, the  intention  which  it  is  of  opinion  that  he  has 
in  the  whole  will  sufficiently  declared.  Ferson  v. 
Dodge,  23  Pick.  287;  Towns  v.  Wentworth,  11 
Moore  P.  C.  526;  Abbott  v.  Middleton,  7  H.  L.  Cas. 
68;  Greenwood  v.  Greenwood,  5  Ch.  D.  954. 


CHAPTER  XI 

SPECIFIC  LEGACIES,  ADEMPTION,  EXONERATION 
ABATEMENT,  AND  CONTRIBUTION 

"COURTS  do  not  incline  to  construe  legacies  to  be 
specific,  and  will  not  do  so  unless  such  be  the  clear 
intention  of  the  testator.  Kirby  v.  Potter,  4  Ves. 
748;  Attorney  General  v.  Parkin,  Ambl.  566;  Briggs 
v.  Hosford,  22  Pick.  288;  Boardman  v.  Boardman, 
4  Allen,  179."  Wilcox  v.  Wilcox,  13  Allen,  252,  256. 
Hence  the  intention  of  the  testator  in  reference  to 
the  thing  bequeathed  must  be  clear.  It  is  well  es- 
tablished that  the  law  favors  general,  rather  than 
specific  legacies,  and  the  courts  lean  towards  the 
former  and  against  the  latter.  If  "the  bequjest  is 
of  a  sum  of  money,  or  of  shares  of  stock,  without 
further  description  or  reference,  and  which  may  be 
satisfied  by  the  delivery  to  the  legatee  of  any  stock 
of  the  kind  designated,  such  a  legacy  is  general." 
Kunkel  v.  Macgill,  56  Md.  120,  122. 

The  bequest  of  the  whole  of  the  testator's  stock  in 
a  particular  bank  is  specific.  Foote,  Apt.,  22  Pick. 
299.  The  word  "my"  hi  reference  to  stock  or 
shares  is  generally  admitted  to  be  sufficient  to 
make  a  bequest  specific.  But  the  doctrine  of  aug- 
mentation of  a  specific  legacy  should  be  borne  in 

235 


236  TESTAMENTARY   FORMS 

mind;  for  a  gift  of  "my"  stock  may  include  all 
the  stock  of  the  particular  description  belong- 
ing to  the  testator  at  his  death.  See  Theobald's 
Law  of  Wills  (7th  ed.),  150;  In  re  Martin,  25 
B.  I.  1. 

The  bequest  of  a  sum  due  upon  a  mortgage  of 
particular  premises  or  upon  a  certain  note  described 
is  specific.  So  also  the  proceeds  of  a  certain  mort- 
gage, or  all  the  money  due  on  the  bond  of  A.  B.,  or 
all  the  money  standing  to  the  testator's  credit  in 
a  particular  bank.  So,  also,  a  particular  security 
described.  So,  also,  a  mortgage  deed,  note,  and 
debt.  See  Farnum  v.  Bascom,  122  Mass.  282; 
Towle  v.  Swasey,  106  Mass.  100.  "A  bequest  is  not 
the  less  specific  because  it  includes  numerous  arti- 
cles. A  bequest  of  all  the  horses  which  the  testator 
may  own,  of  all  his  plate,  of  all  the  books  in  his 
library,  or  of  all  the  horses,  cattle,  and  farming 
tools  on  a  particular  farm  or  farms,  is  specific." 
Tomlinson  v.  Bury,  145  Mass.  346,  348. 

But  a  pecuniary  legacy  is  generally  regarded  as 
general.  Perkins  v.  Mathes,  49  N.  H.  107,  114; 
Mathis  v.  Mathis,  18  N.  J.  Law,  59. 

The  devise  of  a  farm  or  any  definite  parcel  of 
real  estate  is  specific.  Humes  v.  Wood,  8  Pick.  478. 
So,  also,  the  use  and  improvement  of  a  certain  lot  of 
land  for  the  term  of  one's  natural  life,  as  well  as  the 
remainder  after  the  termination  of  such  life.  Far- 
num v.  Bascom,  ubi  supra,  p.  286. 

A  residuary  legacy  is  not  specific,  and  the  Eng- 
lish rule  that  residuary  devises  of  real  estate  are 


SPECIFIC    LEGACIES  237 

specific  probably  never  obtained  in  most  American 
jurisdictions. 

Forms  like  the  following  may  be  used: 

Specific   Legacies. 

I  give  and  bequeath  to  A.  B.  my  ten  shares  hi  the 
People's  National  Bank  of,  etc.,  certificate  num- 
bered 1417,  meaning  and  intending  the  same  as  a 
specific  legacy. 

I  give  and  bequeath  to  A.  B.  ten  of  the  first  mort- 
gage bonds  of  the  Agricultural  R.  R.  Co.  issued  in 
1911  and  redeemable  in  1941.  Said  bonds  are  num- 
bered 1017,  1018,  1042,  1065,  1157,  1159,  1187,  1305, 
1322  and  1367.  Each  of  them  is  of  the  denomina- 
tion of  one  thousand  dollars;  and  this  bequest  is 
intended  as  a  specific  one. 

I  give  and  bequeath  to  my  friend  A.  B.  two 
hundred  shares  of  the  capital  stock  of  the  Silver 
Manufacturing  Company  standing  in  my  name  and 
represented  by  certificate  numbered  643,  dated,  etc. 
I  mean  and  intend  this  legacy  as  a  specific  one,  but, 
if  it  should  appear  at  the  time  of  my  decease  that  I 
have  disposed  of  said  shares,  then  in  lieu  thereof  I 
give  and  bequeath  to  said  A.  B.  the  sum  of  twenty 
thousand  dollars. 

I  give  and  bequeath  to  my  friend,  A.  B.  five 
SI, 000  bonds  of  the  Wellington  Manufacturing  Co. 


238  TESTAMENTARY   FORMS 

issued  in  1904  and  redeemable  in  1920,  said  bonds 
being  numbered  98,  142,  163,  207  and  225.  I  mean 
and  intend  the  same  as  a  specific  bequest;  and  I  de- 
clare and  direct  that,  if  at  the  time  of  my  decease 
I  am  not  the  owner  of  any  one  or  all  of  such  bonds, 
then  my  executors  shall  from  the  general  funds  of 
my  estate  purchase  a  bond  or  bonds  to  make  good 
the  deficiency. 

Another  form  of  specific  legacy  may  be  found  on 
p.  515. 

The  "ademption"  of  specific  legacies  is  an  im- 
portant consideration. 

If  a  specific  legacy  fail  by  the  ademption  or  in- 
adequacy of  its  subject,  the  legatee  will  not  be 
entitled  to  any  recompense  out  of  the  general  per- 
sonal estate.  "A  specific  legacy  of  a  chattel,  or  a 
particular  debt,  or  parcel  of  stock,  is  held  to  be 
adeemed  when  the  testator  has  collected  the  debt, 
or  disposed  of  the  chattel  or  stock  in  his  lifetime, 
whatever  may  have  been  the  intent  or  motive  of 
the  testator  in  so  doing."  Richards  v.  Humphreys, 
15  Pick.  133,  135.  See  Kenaday  v.  Sinnott,  179 
U.  S.  606.  In  all  cases  of  specific  gifts  the  attorney 
should  instruct  the  testator  that  if  the  thing  or 
property  bequeathed  is  sold  or  disposed  of  by  the 
testator  before  death,  the  ademption  is  complete 
and  the  legatee  gets  nothing  unless  the  testator 
makes  other  provision  for  him  in  the  will. 

It  should  be  noted  that  if  a  legacy  is  given  gener- 


ADEMPTION  239 

ally  with  reference  to  a  particular  fund,  as  a  means 
of  payment,  it  is  demonstrative;  and,  if  the  fund  fail, 
the  legatee  will  be  entitled  to  receive  his  legacy  out 
of  the  general  assets. 

"A  demonstrative  legacy  is  a  bequest  of  a  certain 
sum  of  money,  stock  or  the  like,  payable  out  of  a 
particular  fund  or  security.  ...  A  bequest  of  the 
sum  of  $1,500  payable  out  of  the  proceeds  of  a 
specified  bond  and  mortgage,  is  a  demonstrative 
legacy."  Crawford  v.  McCarthy,  159  N.  Y.  514, 
519.  In  this  case  a  bequest  "I  direct  my  daughter, 
out  of  the  moneys  belonging  to  me  on  deposit  in  her 
name,  to  pay  my  said  son  the  sum  of  fifteen  hundred 
dollars,"  without  any  general  bequest  to  the  son, 
was  held  a  specific,  and  not  a  demonstrative  legacy. 

The  sale  of  real  estate  specifically  devised  operates 
as  an  ademption.  Ward  v.  Ward,  15  Pick.  511,  524. 

Provision  is  made  for  ademption  in  two  of  the 
forms  just  given.  The  following  are  also  offered  as 
forms : 

Ademption. 

If  at  the  time  of  my  decease  the  stocks  and  bonds 
specifically  bequeathed  herein  are  not  in  my  pos- 
session, then  I  direct  my  executors  to  make  good 
such  specific  legacies  by  purchasing  from  the  general 
funds  of  my  estate  stocks  and  bonds  necessary  to 
make  up  the  deficiency;  and,  if  they  cannot  pur- 
chase stocks  and  bonds  of  the  same  kind,  then  I 
authorize  them  to  purchase  those  of  a  similar  kind 
and  of  equal  value. 


240  TESTAMENTARY   FORMS 

In  case  I  shall  part  with  any  of  the  one  hundred 
shares  of  the  stock  of  the  Equity  Belting  Co.  spe- 
cifically bequeathed  herein  to  my  son  A.  B.,  then  I 
direct  my  executors,  as  the  shares  of  said  company 
are  closely  held,  not  to  endeavor  to  purchase  any  of 
the  same  but  to  turn  over  the  shares  on  hand  to  the 
said  A.  B.  and  to  make  up  the  deficiency  to  him  in 
money,  estimating  the  stock  disposed  of  at  one  hun- 
dred and  fifty  dollars  a  share. 

If  at  the  time  of  my  decease  I  shall  not  have  in 
my  possession  a  sufficient  amount  of  each  descrip- 
tion of  bonds  to  fulfil  the  specific  legacies  given  by 
this  will,  I  direct  my  executors  to  purchase  with  the 
general  funds  of  my  estate  the  required  amount  of 
the  kind  of  bonds  lacking,  or,  if  this  is  impossible, 
then  bonds  of  a  similar  kind  and  of  equal  value  and 
to  apply  the  same  to  the  carrying  out  and  payment 
of  said  legacies. 

I  give  to  A.  B.  five  $1,000  first  mortgage  bonds  of, 
etc.,  numbered  837  to  841  inclusive,  and  if,  at  the  time 
of  my  decease,  I  am  not  in  possession  of  any  one  or 
more  of  said  bonds  I  give  the  said  A.  B.  the  sum  of 
one  thousand  dollars  in  money  for  each  of  said 
bonds  disposed  of  by  me. 

I  give  A.  B.  three  $1,000  first  mortgage  bonds  of, 
etc.,  numbered  417,  418  and  460;  and,  if  I  do  not 
have  in  my  possession  at  the  tune  of  my  decease 
any  one  or  more  of  said  bonds,  I  direct  that  the 


ADEMPTION  241 

deficiency  be  made  good  with  any  sound  and  reliable 
bonds  of  equivalent  value,  which  I  hereby  give  and 
bequeath  to  the  said  A.  B. 

Another  important  matter  is  that  of  "exoneration." 

Personal  or  real  property  specifically  devised  or 
bequeathed  is  to  be  exonerated  from  all  incum- 
brances  placed  upon  it  by  the  testator,  in  the  ab- 
sence of  any  expressed  intention  to  the  contrary. 

This  subject  is  fully  treated  on  pp.  91  et  seq. 

"  Specific  legacies  are  considered  as  separated  from 
the  general  estate,  and  appropriated  at  the  time  of 
the  testator's  death;  and,  consequently,  from  that 
period,  whatever  produce  accrues  upon  them,  and 
nothing  more  or  less,  belongs  to  the  legatee."  2  Wil- 
liams on  Executors  (Am.  ed.),  741.  A  specific  legacy 
of  a  coupon  bond  carries  with  it  an  overdue  negotiable 
coupon  attached  to  it  at  the  testator's  death.  Ogden 
v.  Pattee,  149  Mass.  82.  This  decision  is  very  broad, 
and  it  is  doubtful  whether  it  would  be  followed  in 
all  jurisdictions.  Hence  that  no  question  in  the 
case  of  bonds  specifically  bequeathed  may  be  raised 
as  to  the  apportionment  of  the  proceeds  of  coupons 
which  are  the  first  to  mature  after  the  testator's 
decease,  the  testator's  intention  should  appear. 

The  will  of  a  wealthy  testator  contained  the  follow- 
ing provision: 

The  interest  upon  all  the  bonds  hi  this  will  be- 
queathed either  to  legatees  or  in  trust  shall  be 
apportioned  up  to  the  date  of  my  decease,  and  so 


242  TESTAMENTARY   FORMS 

much  thereof  as  shall  have  accrued  up  to  that  date, 
though  not  then  due  or  payable,  shall  when  collected 
belong  to  my  residuary  legatee. 

A  testator  may  desire  to  insert  a  provision  some- 
thing like  the  folio  whig: 

I  particularly  direct  in  the  case  of  the  bonds  spe- 
cifically bequeathed  by  this  will  to  A.  B.,  that  there 
shall  be  no  apportionment  of  the  coupons  thereon, 
either  overdue  and  attached  or  which  are  the  first 
to  mature  after  my  decease,  but  that  said  coupons 
like  all  unmatured  coupons  upon  said  bonds  shall 
go  and  belong  absolutely  to  the  said  A.  B. 

Another  important  matter  is  that  of  "abatement" 
hi  case  of  a  deficiency  of  assets  to  pay  debts  and 
legacies.  For  convenience,  the  question  of  abate- 
ment will  be  considered  hi  relation  not  only  to 
specific  but  to  other  legatees  and  devisees.  It  is  a 
general  rule  that  the  loss  in  the  case  of  a  deficiency 
of  assets  must  be  borne  by  general  legacies  before 
specific  legacies  and  devises  are  resorted  to;  and 
then  specific  legacies  and  devises  abate  pro  rata. 
See  1  Am.  &  Eng.  Encyc.  of  Law  (2d  ed.),  56. 

If  the  residuum  of  an  estate  is  of  generous  size  and 
the  testator's  obligations  are  not  large,  the  proba- 
bility of  abatement  of  legacies  is  very  slight.  In  the 
case  of  losses  or  depreciation  of  property  after  the 
making  of  the  will,  the  testator  should  either  re- 


ABATEMENT  243 

write  it  or  add  a  codicil,  provided  the  will  contains 
no  provision  as  to  abatement.  An  elaborate  pro- 
vision in  a  will  is  not  necessary,  and  each  case  must 
be  determined  by  its  own  circumstances.  However, 
forms  may  be  used  similar  to  the  following: 

Abatement. 

If  my  estate  shall  prove  insufficient  to  pay  all  the 
bequests  herein  given,  then  I  direct  that  the  be- 
quest to  my  said  wife  shall  be  first  paid  and  that  the 
other  legacies  shall  abate  proportionately. 

If  my  estate  should  diminish  from  depreciation  or 
losses  and  should  thus  prove  insufficient  to  pay  all 
the  legacies  and  devises  in  full,  I  direct  that  the 
pecuniary  and  specific  legacies  shall  abate  proportion- 
ately before  resort  is  had  to  the  specific  devises. 

If  my  debts  shall  exhaust  the  residuary  assets  of 
my  estate,  then  I  direct  that  the  legacy  of  Five 
Thousand  Dollars  to  A.  B.  in  the  fifth  article  of  this 
will  and  the  specific  legacy  to  C.  D.  of  fifty  shares 
of  the  capital  stock  of,  etc.,  shall  abate  equally  to 
the  exoneration  of  the  other  legacies  and  devises. 

As  I  may  encounter  losses  hi  business  transactions 
and  my  estate  may  consequently  be  insufficient  at 
the  time  of  my  decease  to  pay  in  full  all  the  legacies 
herein  given,  I  order  and  direct  that  in  case  of  such 
deficiency  of  assets  the  pecuniary  legacies  each  of 
Ten  Thousand  Dollars  given  in  articles  four,  five 


244  TESTAMENTARY   FORMS 

and  six  of  this  will  to  A.  B.,  C.  D.,  and  E.  F.,  shall 
abate  proportionately. 

It  is  nay  will  and  I  direct  that  the  provisions  in  this 
will  for  my  wife  and  children  shall  be  entitled  to 
preference;  and,  if  my  estate  shall  be  insufficient 
to  pay  all  the  legacies  in  full,  then  the  legacies  herein 
given  to  my  brothers,  sisters,  friends  and  servants 
shall  abate  ratably  to  the  end  that  my  wife  and 
children  shall  enjoy  the  provisions  made  for  them 
without  any  deduction  or  abatement. 

If  my  property  shall  prove  insufficient  to  pay  all 
the  legacies  given  by  this  will,  then  I  direct  that  the 
deficiency  shall  fall  first  upon  the  legacy  of  Five 
Thousand  Dollars  given  by  the  ninth  article  of  this 
will  to  the  Way  wood  Academy;  secondly  upon  the 
legacy  of  Ten  Thousand  Dollars  given  by  the 
eleventh  article  of  this  will  to  my  brother,  L.  M.; 
and  thirdly  upon  the  legacy  of  Fifteen  Thousand 
Dollars  given  by  the  thirteenth  article  of  this  will 
to  my  friend,  N.  0. 

If  my  estate  shall  not  be  sufficient  to  pay  in  full 
all  the  legacies  given  in  this  will,  then  I  direct  that 
the  loss  shall  fall  ratably  upon  the  six  pecuniary 
legacies  herein  given,  irrespective  of  the  amount  of 
such  legacies.  To  illustrate:  if  the  amount  of  the 
deficiency  is  Twelve  Thousand  Dollars  each  pecu- 
niary legacy  shall  contribute  two  thousand  dollars, 
or  in  other  words  shall  abate  to  that  amount. 


ABATEMENT  245 

If  my  property  proves  insufficient  to  pay  all  the 
legacies  herein  given,  then  I  direct  that  they  shall 
abate  as  follows:  first  the  pecuniary  legacies  shall 
contribute  ratably  to  make  up  the  deficiency;  and, 
if  all  the  pecuniary  legacies  are  taken  for  that 
purpose,  then  the  specific  legacy  of  100  shares  of 
the  Plympton  Railroad  Co.  given  to  A.  B.  by  the 
eighth  article  of  this  will  shall  be  resorted  to  and 
the  whole  thereof  taken,  if  necessary. 

The  above  legacy  of  bonds  and  shares  of  stock  I 
do  not  intend  as  a  specific,  but  as  a  general,  one;  and 
I  declare  that  the  said  legacy  shall  be  subject  to 
abatement  in  the  same  manner  as  a  general  legacy 
would  be. 

Another  form  will  be  found  on  p.  516. 

A  legacy  not  "of  money  payable  out  of  a  particular 
fund,  but  of  a  distinct  share  of  a  fund  with  a  pro- 
vision that  such  share  should  not  amount  to  more 
than  a  certain  sum"  is  specific.  "It  is  contended, 
therefore,  that  it  abated  during  the  time  that  the 
rents  out  of  which  it  was  payable  were  being  used 
under  the  trust  which  the  testator  had  created  for 
the  benefit  of  creditors.  As  there  is  no  claim  except 
upon  the  fund  specifically  bequeathed,  this  deficit 
cannot  be  made  a  charge  on  the  general  estate.  But 
where  there  is  a  legacy  of  a  definite  amount  specifi- 
cally charged  as  an  annuity  upon  the  rents  or  income 
of  a  certain  estate,  if  in  any  one  year  the  estate,  or 
share  of  it  appropriated  to  the  annuity,  shall  fail 


246  TESTAMENTARY   FORMS 

to  produce  the  amount,  the  arrearages  of  the  annuity 
are  chargeable  upon  the  subsequent  income  re- 
ceived, so  that,  if  more  shall  be  produced  than  is 
required  for  the  current  payments,  it  may  be  applied 
to  their  liquidation.  Graves  v.  Hicks,  11  Sim.  536, 
555;  Booth  v.  Coulton,  L.  R.  5  Ch.  684;  Taylor  v. 
Taylor,  L.  R.  17  Eq.  324;  Nudd  v.  Powers,  136  Mass. 
273.  The  same  principle  should  be  applied  even 
where  the  testator  sets  aside  during  his  lifetime, 
for  a  temporary  purpose,  the  income  he  has  already 
bequeathed,  although  the  arrearage  thus  created  is 
by  his  own  act,  and  not  by  a  failure  in  the  income- 
producing  capacity  of  the  property.  By  charging 
an  annuity  upon  the  income  of  specific  property,  he 
has  shown  an  intent  that  the  annuitant  shall  receive 
it  whenever  it  can  be  realized  therefrom,  even  if  in 
the  form  of  arrears.  Even  if  the  effect  of  his  act  is 
to  apply  for  a  tune  the  income  elsewhere,  the  origi- 
nal intent  remains."  Bradlee  v.  Andrews,  137  Mass. 
50,  57. 

If  a  testator  directs  his  executors  to  pay  off  all 
mortgages  on  real  estate  specifically  devised  by  him 
and  then  convey  it  to  the  devisee,  the  executors  are 
to  pay  the  whole  of  the  mortgage  and  not  merely 
such  proportional  part  of  it  as  they  pay  of  the 
pecuniary  legacies,  in  view  of  the  necessary  abate- 
ment of  them.  Porter  v.  Howe,  173  Mass.  521,  526. 
In  this  case  the  contention  that  the  payment  of 
legacies  under  the  first  eleven  items  of  the  will  was 
erroneous,  on  the  ground  that  the  estate  was  in- 
sufficient to  pay  the  legacies  in  full,  and  that  these 


ABATEMENT  247 

should  abate  proportionally  with  the  others,  was 
held  to  be  unsound,  pp.  524,  525.  It  was  also  held 
that  the  reference  in  the  last  item  of  the  will  to  the 
fact  that  "certain  of  the  legacies  and  bequests 
named  above  are  limited  to  be  paid  after  certain 
events,  as  recited"  related  not  to  the  question  of 
abatement  of  legacies^  but  partly  to  the  distinction 
between  legacies  payable  before  the  death  of  a 
legatee  and  those  payable  afterwards,  pp.  528,  529. 
"In  order  to  give  a  preference  to  some  over  others  of 
general  pecuniary  legatees,  the  expression  of  the 
intention  of  the  testator  so  to  do  must  be  clear 
and  conclusive."  p.  527.  The  father  of  a  testator 
left  a  large  sum,  the  income  to  go  to  the  testator 
for  life,  and  gave  him  a  power  of  disposition  over 
the  corpus  by  will.  The  testator  after  directing  by 
the  fourth  clause  of  his  will  that  if  his  own  residue 
was  insufficient,  this  fund  should  be  used  to  make 
good  any  deficiencies  hi  certain  charitable  legacies 
of  his  mother,  by  the  fifth  clause  of  his  will  ap- 
pointed a  fund  "or  so  much  thereof  as  may  remain 
after  the  foregoing  provisions  of  my  will  shall  have 
been  satisfied,  in  equal  shares  to  "  two  institutions 
named.  There  were  no  deficiencies  to  be  made  good 
under  the  fourth  clause,  the  appointment  was  not 
modified  by  the  codicils,  and  the  second  codicil 
stated  that  it  was  not  intended  to  dispose  of  any 
property  over  which  the  testator  had  a  power  of 
appointment.  It  was  held  that  if  the  estate  of  the 
testator  was  insufficient  to  pay  the  legacies  given  in 
the  second  codicil,  the  fund  in  question  was  not 


248  TESTAMENTARY   FORMS 

to  abate  proportionately.  White  v.  Massachusetts 
Institute,  171  Mass.  84,  95,  96.  It  was  held  in 
Johnson  v.  Home  for  Aged  Men,  152  Mass.  89,  that 
there  was  no  intention  of  the  testator  to  prefer 
a  trust  fund  over  a  specific  devise,  or  to  give  any 
priority  thereto.  "Specific  legacies  are  not  to  be 
abated  on  account  of  general  legacies,  unless  the 
latter  are  made  a  charge  thereon.  Nor  is  the  devise 
of  a  specified  parcel  of  real  estate  to  be  charged  with 
the  formation  of  particular  funds  subsequently  pro- 
vided for  hi  a  will,  unless  the  intent  so  to  charge 
the  property  devised  clearly  appears."  Same  case, 
p.  93. 

The  words  "further"  and  "then"  in  the  phrase 
"Further  my  said  executors  and  trustees  shall  then 
pay  over  the  following  gifts  and  bequests,  namely," 
etc.,  "have  repeatedly  been  held  not  to  import  a 
preference."  Porter  v.  Howe,  173  Mass.  521,  528. 

"When  there  is  a  deficiency  after  the  payment  of 
debts,  expenses,  and  specific  legacies,  the  loss  shall 
be  borne  entirely  by  those  pecuniary  legacies  which 
are  hi  their  nature  general.  ...  As  between  legacies 
which  are  in  their  nature  mere  bounties,  the  presump- 
tion of  intended  equality  will  prevail,  unless  there 
is  unequivocal  evidence  to  the  contrary;  and  no 
priorty  will  be  allowed  where  the  expressions  of  the 
will  are  ambiguous."  Towle  v.  Swasey,  106  Mass. 
100,  104.  In  the  abatement  of  pecuniary  legacies 
there  is  no  legal  difference  between  legacies  to  in- 
dividuals and  legacies  to  public  charities;  nor  does 
relationship  furnish  any  test,  although  all  such  facts 


ABATEMENT  249 

may  be  considered  in  determining  the  intention  of 
the  testator.    Porter  v.  Howe,  173  Mass.  521,  527. 

Specific  and  demonstrative  legacies  abate  after 
the  pecuniary  legacies  just  named  above.  2  Williams 
on  Executors  (7th  Am.  ed.),  676,  677.  "If  a  legacy 
is  specific  and  is  appropriated  to  the  payment  of 
debts,  the  legatee  (if  the  general  or  residuary  legacies 
are  not  sufficient)  is  entitled  to  contribution  from 
the  holders  of  other  specific  legacies.  Farnum  v. 
Bascom,  122  Mass.  282."  Tomlinson  v.  Bury,  145 
Mass.  346.  But  where  recourse  is  had  to  specific 
devises  and  bequests  in  order  to  meet  the  debts, 
there  is  no  preference  of  the  real  to  the  personal 
estate,  but  they  must  bear  the  burden  proportion- 
ally. Farnum  v.  Bascom,  122  Mass.  282,  287,  288. 
See  Hubbell  v.  Hubbell,  9  Pick.  561;  Ellis  v.  Page, 
7  Gush.  161,  163.  Legacies  founded  on  a  valuable 
consideration,  as  hi  the  case  of  a  widow  who  accepts 
a  legacy  in  lieu  of  dower,  are  generally  the  last  to 
abate.  Hubbard  v.  Hubbard,  6  Met.  50;  Pollard  v. 
Pollard,  1  Allen,  490;  Towle  v.  Swasey,  106  Mass. 
100,  105,  106;  Welch  v.  Adams,  152  Mass.  74,  79; 
Gruver  v.  Wood,  174  Mass.  540.  And  the  same 
principle  would  seem  to  apply  in  case  of  a  husband 
who  consents  to  his  wife's  will,  hi  which  she  gives 
him  a  life  interest  in  certain  real  estate,  although  not 

• 

an  exact  equivalent  to  the  right  relinquished.  Far- 
num v.  Bascom,  122  Mass.  282,  288,  289.  But  the 
fact  of  near  relationship  or  dependence,  or  of  the, 
meritorious  character  of  the  legatee,  is  not  enough 
to  justify  a  preference.  Richardson  v.  Hall,  124 


250  TESTAMENTARY   FORMS 

Mass.  228,  233.  See  also  Towle  v.  Swasey,  ubi  supra, 
p.  108.  If  a  testator  by  will  gives  a  pecuniary  legacy 
to  his  widow,  and  she  accepts  it,  a  specific  bequest 
of  personal  property,  and,  if  that  is  insufficient,  a 
specific  devise  of  land,  to  other  beneficiaries,  must 
abate  in  favor  of  the  legacy  to  the  widow,  if  the 
abatement  of  the  general  legacies  is  insufficient  for 
the  purpose.  Borden  v.  Jenks,  140  Mass.  562. 

In  some  places  there  are  statutes  providing  for 
contribution  when  an  estate  is  taken  from  a  devisee 
for  the  widow's  dower  or  for  the  tenancy  by  the 
curtesy  of  the  husband,  and  also  for  contribution  in 
case  of  posthumous  or  omitted  children. 

A  perfect  form  of  will  is  that  which  makes  no 
mention  of  pecuniary  legacies,  but  gives  the  entire 
estate  in  shares.  Hence  no  questions  as  to  priority 
of  payment  of  legacies  can  arise.  The  following 
are  offered  as  forms: 

Estate  given  in  Shares. 

I  direct  that  all  the  property  of  which  I  shall  die 
seized  and  possessed  and  to  which  I  shall  be  entitled 
at  the  time  of  my  decease,  wherever  the  same  may 
be  situated,  shall  be  divided  into  five  equal  shares. 
Then  I  give,  devise,  and  bequeath  two  of  said  shares, 
that  is,  two  fifths  of  my  entire  estate,  to  my  brother 
A.,  and  to  his  heirs  and  assigns  forever;  two  of  said 
shares,  that  is,  two  fifths  of  my  entire  estate,  to  my 
brother  B.,  and  to  his  heirs  and  assigns  forever,  and 
one  of  said  shares,  that  is,  one  fifth  of  my  entire  estate, 
to  my  friend  C.,  and  to  his  heirs  and  assigns  forever. 


CONTRIBUTION  251 

I  give,  devise  and  bequeath  to  my  wife  A.  B.  and 
to  her  heirs  and  assigns  forever  the  sum  of  one 
hundred  thousand  dollars,  which  I  estimate  as 
exactly  one  third  in  value  of  my  estate,  both  real 
and  personal,  at  the  present  time;  and  all  the  rest, 
residue  and  remainder  of  my  estate,  both  real  and 
personal,  of  which  I  shall  die  seized  and  possessed 
and  to  which  I  may  be  entitled  at  the  tune  of  my 
decease,  I  give,  devise  and  bequeath  to  my  two 
children  A.  B.,  and  C.  D.,  and  to  their  heirs  and 
assigns  forever,  to  be  equally  divided  between  them. 

All  the  rest,  residue  and  remainder  of  my  property, 
both  real  and  personal,  of  which  I  shall  die  seized 
and  possessed  and  to  which  I  may  be  entitled  at  the 
time  of  my  decease,  and  wherever  the  same  may  be 
situated,  I  direct  my  said  executor  to  divide  into 
nine  equal  shares  or  parts;  and  I  give,  devise  and 
bequeath  three  of  said  shares  or  parts,  being  three 
ninths  or  one  third  of  said  rest,  residue  and  remainder 
to  my  wife  A.  B.  to  have  and  to  hold  to  her  and  her 
heirs  and  assigns  forever  and  to  each  of  my  children, 
C.  D.,  E.  F.,  G.  H.,  I.  J.,  K.  L.,  and  M.  N.,  one  of 
said  shares  or  parts,  being  for  each  one  ninth  of  said 
rest,  residue  and  remainder,  to  have  and  to  hold  to 
them  and  their  heirs  and  assigns  respectively  forever. 

The  advantages  and  the  desirability  of  giving 
property  in  shares  cannot  be  too  strongly  urged.  A 
testator's  wishes  may  be  completely  thwarted  by 
events  occurring  subsequent  to  the  execution  of  the 


252  TESTAMENTARY   FORMS 

will,  if  instead  of  bequeathing  and  devising  his 
property  in  shares,  he  gives  a  large  pecuniary  legacy 
or  legacies  and  the  balance  of  his  estate  to  a  residuary 
legatee  or  legatees.  For  example,  a  testator  is  worth 
six  hundred  thousand  dollars.  He  is  living  with  a 
second  wife,  and  all  his  children,  four  hi  number, 
are  by  the  first  wife.  He  gives  his  living  wife  by  will 
a  pecuniary  legacy  of  two  hundred  thousand  dollars, 
just  one  third  of  his  property,  and  the  four  children 
the  rest,  residue,  and  remainder.  At  the  tune  of  his 
death  his  property,  by  reverses  and  depreciation 
due  to  commercial  causes,  has  shrunk  to  two  hun- 
dred thousand  dollars.  This  the  wife  takes  and  the 
children  get  nothing.  If  the  wife  had  been  given 
two  sixths  and  the  children  each  one  sixth  of  the 
estate,  they  would  all  have  borne  the  shrinkage 
ratably. 

Other  forms  are  given  on  pp.  542,  560,  566,  574. 


CHAPTER  XII 

LEGACY  TO  DEBTOR  OR  CREDITOR  OF  THE 
TESTATOR 

1.   Legacy  to  a  Debtor. 

"THE  mere  fact  of  a  pecuniary  legacy  to  one  who 
is  indebted  to  the  testator  raises  no  presumption  of 
an  intention  by  the  testator  to  forgive  the  debt,  in 
addition  to  the  legacy."  Rood  on  Wills,  §  735. 

It  is  provided  by  statute  in  some  jurisdictions 
that  a  debt  due  to  the  estate  of  a  deceased  person 
from  a  legatee  or  distributee  of  such  estate  shall  be 
set  off  against  and  deducted  from  the  legacy  to  such 
legatee  or  from  the  distributive  share  of  such  dis- 
tributee; and  the  probate  court  shall  hear  and  de- 
termine the  validity  and  amount  of  any  such  debt, 
and  may  make  all  necessary  or  proper  decrees  and 
orders  to  effect  such  set-off  or  deduction;  but  the 
provision  of  this  statute  shall  not  prejudice  any 
remedy  of  an  executor  or  administrator  for  the  re- 
covery of  such  debt  nor  affect  the  liability  of  the 
legatee  or  distributee  for  the  excess  of  his  indebted- 
ness over  the  amount  of  his  share  in  or  claim  upon 
the  estate  to  which  he  is  indebted. 

It  has  been  held  that  if  the  debt  is  barred  by  the 
statute  of  limitations  at  the  time  of  the  testator's 

253 


254  TESTAMENTARY   FORMS 

death,  it  cannot  be  deducted  from  the  legacy,  un- 
less that  intention  appears  by  the  will.  Allen  v. 
Edwards,  136  Mass.  138. 

The  testator's  purpose  should  clearly  appear,  as 
it  has  been  held  that  his  intention  may  be  implied 
from  some  other  part  of  the  will  or  may  be  proved 
by  extrinsic  evidence.  See  Sloane  v.  Stevens,  107 
N.  Y.  122. 

Forms  like  the  following  may  be  used : 

*•  -t  • 

I  give  A.  B.  a  legacy  of  ten  thousand  dollars  and 
I  expressly  declare  that  all  debts  of  every  name  and 
description  now  due  me  and  that  hereafter  may  be 
due  me  from  said  A.  B.  at  the  time  of  my  decease 
are  hereby  forgiven  and  cancelled. 

I  give  A.  B.  a  legacy  of  ten  thousand  dollars  and 
I  expressly  declare  that  it  is  not  my  intention  to 
forgive  and  cancel  any  claim  or  claims  I  may  have 
against  him  at  the  time  of  my  decease. 

Another  form  is  given  on  p.  515. 
Testators  frequently  provide  for  cancelling  debts, 
as  in  the  following  forms: 

Legacy  in  Case  of  Joint  Obligation. 

Whereas  I  have  in  my  possession  the  joint  obliga- 
tion to  the  amount  of  forty  thousand  dollars  of  my 
four  children,  A.  B.  C.  and  D.,  and,  whereas  I  de- 
sire to  release  my  son  D.  from  all  liability  thereon, 
but  apprehend  that,  if  I  do  so  by  this  will,  I  may 


LEGACY   TO   A   DEBTOR  255 

legally  release  my  other  children  as  well,  now, 
therefore,  I  hereby  give  the  said  D.  a  legacy  of  ten 
thousand  dollars,  which  will  be  sufficient  to  enable 
him  to  discharge  his  share  of  the  obligation. 

Cancellation  of  Debts  not  Exceeding  One  Hundred 
Dollars  each. 

It  has  been  my  custom  to  lend  small  sums  of 
money  to  relatives  and  friends  in  indigent  circum- 
stances and  in  most  cases  to  take  no  written  obliga- 
tion therefor.  Many  of  these  claims  are  now  out- 
lawed, but,  whether  outlawed  or  not,  I  direct  my 
executors  to  cancel  all  of  them  which  I  may  have 
and  hold  against  any  persons  whatever  at  the  tune 
of  my  decease,  this  release  and  cancellation,  how- 
ever, to  apply  only  to  claims  each  of  one  hundred 
dollars  or  less,  exclusive  of  interest  paid  or  unpaid. 

Cancellation  of  Debts  not  Exceeding  Five  Hundred 
Dollars  each. 

If  at  the  time  of  my  decease  I  hold  any  claims  of 
any  nature  whatever,  each  of  which  shall  be  five 
hundred  dollars  or  less,  against  any  person  or 
persons  whatever,  evidenced  by  mortgages,  notes, 
book  accounts  or  in  any  other  manner,  then  I  au- 
thorize and  empower  my  executors  to  release  and 
cancel  all  of  such  claims,  giving  the  debtor  in  each 
case  such  acquittance,  release  or  discharge  as  may 
be  legal  and  proper.  In  determining  whether  a 
claim  amounts  to  five  hundred  dollars,  interest 


256  TESTAMENTARY   FORMS 

thereon  is  not  to  be  reckoned,  but  is  to  be  entirely 
disregarded. 

Release  of  Tenant  from  Paying  Rent. 

I  give  and  devise  to  my  son  A.  B.  and  to  his  heirs 
and  assigns  forever  the  lot  and  house  thereon  situated 
in,  etc.,  and  bounded  and  described  as  follows  [de- 
scription]. These  premises  have  been  enjoyed  and 
the  house  thereon  has  been  occupied  by  my  said  son 
for  many  years;  and  I  now  direct  that  in  the  settle- 
ment of  my  estate  he  shall  be  released,  and  I  do 
hereby  release  him,  from  the  payment  of  all  rent, 
taxes,  repairs,  insurance  and  any  other  charges 
accruing  and  chargeable  during  his  use  and  occu- 
pancy of  said  premises  previous  to  my  decease. 

Release  of  General  Indebtedness  of  Daughter. 

My  daughter,  A.  B.,  being  at  present  indebted 
to  me  on  various  loans  to  her,  upon  which  she  has 
given  me  certain  security,  I  now  declare  that  it  is 
my  will  and  intention  and  I  hereby  direct  that  all 
such  loans  existing  at  the  tune  of  my  decease,  in- 
cluding interest  due  thereon,  shall  be  discharged 
and  cancelled;  and  I  direct  my  executors  to  deliver 
and  give  up  to  her  not  only  the  evidence  of  such 
loans  so  discharged  and  cancelled,  but  also  all  secu- 
rities or  other  things  of  value  that  may  be  held  by 
me  to  secure  the  same. 

A  testator  may  by  will  direct  that  certain  gifts 
made  by  him  to,  or  debts  due  him  by  note  or  book 


LEGACY   TO   A   DEBTOR  257 

account,  etc.,  from  his  children  or  others,  as,  for  ex- 
ample, a  daughter's  husband,  be  regarded  as  ad- 
vancements; and  they  thus  become  so,  to  all  intents 
and  purposes,  not  by  force  of  the  provisions  of 
statutes,  which  pertain  to  advancements  made  by 
intestates,  or  by  virtue  of  their  original  character, 
but  simply  by  the  will  of  the  testator.  Bacon 
v.  Gassett,  13  Allen,  334;  Langdon  v.  Astor,  16 
N.  Y.  9. 

And  such  claims  cannot  be  barred  by  the  statute 
of  limitations,  so  that  the  testator  has  no  right  to 
them  as  advancements  or  as  debts.  "In  distribut- 
ing his  own  property  among  his  children,  and  deciding 
what  shall  be  a  just  and  equal  portion  for  a  child,  he 
may  treat  any  sum  which  he  has  paid  to  a  child  as 
a  debt  or  advancement  to  be  deducted  from  his 
share.  It  is  hi  the  nature  of  a  charge  to  be  satisfied 
out  of  the  portion,  and  must  be  met  before  the 
legatee  is  entitled  to  the  legacy.  A  testator  may 
not  only  make  his  own  debts  due  from  the  legatee 
a  charge,  but  debts  due  from  another.  It  is  not 
unusual  to  charge  a  daughter's  share  with  her  hus- 
band's debts  to  the  testator.  In  Poole  v.  Poole, 
L.  R.  7  Ch.  17,  a  testator  directed  that  certain  ad- 
vances should  be  deducted  from  a  daughter's  share, 
and  also,  if  at  the  period  for  distribution  she  should 
be  indebted  to  either  of  her  brothers  and  sisters,  his 
trustees  should  be  empowered  to  deduct  such  debts 
from  her  portion.  She  had  borrowed  money  from 
them  both  before  and  after  the  date  of  the  will,  and 
most  of  the  debts  had  been  barred  by  the  statute 


258  TESTAMENTARY   FORMS 

before  the  distribution.  And  it  was  held  that  they 
should  be  deducted;  but  as  the  testator  had  put  his 
own  debt  on  the  footing  of  an  advancement,  the 
inference  was  that  he  intended  to  put  the  claims  of 
the  brothers  and  sisters  on  the  same  footing,  as  ad- 
vancements and  not  as  debts,  and  interest  was  not 
allowed.  See  Rose  v.  Gould,  15  Beav.  189;  Courtenay 
v.  Williams,  3  Hare,  539."  Cummings  v.  Bramhall, 
120  Mass.  552,  561. 

Where  a  testator  directed  that  "legal  debts" 
should  be  deducted  from  each  child's  portion,  it  was 
held  that  only  debts  were  meant  which  can  be  en- 
forced hi  a  court  of  law.  Rogers  v.  Daniell,  8  Allen, 
343. 

Deductions  from  portions  given  hi  trust  must  be 
from  the  principal,  and  not  from  the  income.  Tread- 
well  v.  Cordis,  5  Gray,  341. 

The  question  whether  executors  have  the  right  to 
charge  interest,  after  the  death  of  the  testator,  upon 
advancements  depends  upon  the  intention  of  the 
testator,  to  be  gathered  from  the  will.  Taylor  v. 
Taylor,  145  Mass.  239.  In  this  case  it  was  held  that 
the  executor  was  not  entitled  to  charge  legatees  with 
interest  after  the  testator's  decease.  In  Nichols  v. 
Coffin,  4  Allen,  27,  39,  it  was  held  that  as  some  of 
the  several  notes  referred  to  were  made  payable  with 
interest,  and  others  not,  the  division  of  the  estate 
should  be  made  as  of  the  day  of  the  testator's  death. 
As  to  a  bequest  in  trust,  the  trustee  to  pay  to  the 
beneficiaries  such  sum  or  sums  as  he  "may  consider 
reasonable  and  proper  as  an  advance  or  marriage 


LEGACY   TO   A   DEBTOR  259 

portion  from  the  said  principal  sum  or  its  accumula- 
tions," see  Croft,  Petr.,  162  Mass.  22,  27.  An  ex- 
amination of  the  original  papers  in  this  case  shows 
that  the  will  contained  this  clause,  ''Whereas  I  have 
heretofore  procured  sundry  stocks  to  be  transferred 
severally  to  my  children  which  are  charged  to  them 
in  my  books,  and  were  and  are  intended  as  advance- 
ments to  them;  Now  therefore  I  direct  that  in  the 
settlement  of  my  estate  the  shares  so  severally 
charged  to  my  children  or  any  stocks  which  may  be 
substituted  by  me  for  those  originally  issued  to 
them  shall  be  charged  to  them  severally  and  re- 
spectively at  such  sum  or  sums  as  they  may  be 
worth  at  my  decease,  by  an  appraisement  then  to 
be  made."  In  Nichols  v.  Coffin,  4  Allen,  27,  it  was 
held  among  other  things  that  certain  notes  given  to 
the  testator  by  several  of  his  children,  each  of  which 
was  expressed  on  its  face  to  be  "in  part  payment 
of  what  I  may  inherit  on  my  father's  decease,  and 
to  be  charged  to  me/'  were  to  be  deducted  from 
the  amount  of  the  shares  set  apart  for  their  benefit 
respectively. 

The  following  suggestions  are  offered : 
The  testator  should  be  told  to  take  a  promissory 
note  in  every  case  of  a  loan,  and  that  the  rate  of  in- 
terest should  be  expressed  therein.  The  will  should 
also  state  whether  interest  is  to  cease  with  the  testa- 
tor's death  or  continue  till  the  settlement  of  the 
estate  and  the  payment  of  legacies.  It  is  better  to 
charge  the  advancement  on  a  regular  pecuniary 
legacy  than  on  a  trust,  a  life  estate,  or  a  remainder. 


260  TESTAMENTARY   FORMS 

Of  course,  a  legatee  may  deny  the  note  or  book 
charge;  and  while  the  testator's  intention  will  un- 
doubtedly prevail,  it  may  be  well  in  some  cases  to 
state  in  the  will  that  neither  notes  nor  book  accounts 
are  to  be  questioned.  Often  at  the  end  of  the  in- 
ventory of  an  estate  will  appear  words  like  these: 
"There  is  an  entry  in  the  testator's  ledger  of  an  in- 
debtedness to  him  of  $5,000,  from  A.  B.,  who  denies 
the  same,  and  this  entry  is  made  here  so  as  not  to 
waive  any  rights";  or,  "The  following  are  claimed 
by  A.  B.,  by  transfer  from  the  testator,  but  the  ex- 
ecutor relinquishes  none  of  his  rights  thereto." 

The  following  forms  may  be  of  service: 

Advances. 

I  have  made  various  advances  of  money  and  of 
securities  to  my  children  and  to  the  issue  of  my 
children  as  appear  by  charges  on  my  books  of  ac- 
count, and  I  think  it  probable  that  I  shall  make 
further  advances  to  them  before  my  decease.  I 
hereby  declare  and  direct  that  all  advances  to  said 
children  and  their  issue  as  appear  by  charges  upon 
my  books  at  the  time  of  my  decease  shall  be  de- 
ducted from  the  shares  or  amounts  bequeathed  to 
such  children  or  issue  herein,  whether  given  abso- 
lutely or  in  trust  'for  them,  and  that  no  interest 
shall  be  charged,  reckoned  or  collected  upon  such 
advances. 

All  advances  to  my  children  appearing  by  charges 
in  my  books  of  account  at  the  time  of  my  decease 


LEGACY   TO   A   DEBTOR  261 

shall  be  deducted  from  the  amounts  of  all  legacies  to 
said  children  under  this  will  or  any  codicil  hereto. 

Whereas  I  have  transferred  certain  real  estate 
and  made  various  gifts  of  money  and  securities  to 
my  children  A.  B.,  C.  D.,  and  E.  F.  during  my  life, 
and  whereas  I  may  make  further  transfers  of  real 
estate  and  gifts  of  money  and  securities  to  them, 
now,  therefore,  I  order  and  direct  that  such  trans- 
fers and  gifts  shall  not  be  regarded  as  a  part  of  my 
estate,  and  I  discharge  and  release  each  and  all  of 
my  said  three  children  from  all  debts  which  they 
owe  or  may  be  construed  to  owe  me  at  the  time  of 
my  decease. 

Any  advances  or  loans  made  by  me  to  any  legatee 
under  this  will  or  any  codicil  hereto,  so  far  as  said  ad- 
vances or  loans  are  unpaid  at  the  time  of  my  decease, 
are  hereby  cancelled,  annulled  and  discharged. 

I  order  and  direct  that  all  gifts  and  advances  to 
my  children  appearing  as  charges  on  my  books  at 
the  time  of  my  decease  or  evidenced  by  promissory 
notes  or  in  any  other  way  shall  be  regarded  as  a  part 
of  my  estate.  Interest  shall  be  charged  upon  all 
such  gifts  and  advances. 

I  order  and  direct,  if  at  the  time  of  my  decease  I 
hold  any  promissory  note  or  notes  against  any 
legatees  under  this  will  or  have  any  claim  or  claims 
against  any  legatees  as  may  appear  by  book  balance 


262  TESTAMENTARY   FORMS 

upon  my  ledger  or  by  any  other  charge  upon  my 
books  of  account,  that  all  such  notes  and  claims 
shall  be  regarded  as  a  portion  of  my  estate,  and 
shall  be  deducted  from  the  respective  legacies  given 
to  such  legatees  by  this  will;  and  it  is  immaterial 
whether  such  notes  or  claims  are  barred  by  the  stat- 
ute of  limitations  or  not  or  whether  the  legatees 
have  been  discharged  from  the  debts  under  the  bank- 
rupt or  insolvent  laws  of  the  United  States  or  of  any 
State.  Interest  upon  all  notes  shall  be  at  the  rate 
specified  therein  and  upon  book  accounts  at  the  rate 
charged;  and,  if  not  so  specified  and  charged,  then 
simple  interest  at  the  rate  of  five  per  cent  per  annum 
shall  be  collected.  Interest  is  not  to  cease  at  my 
death,  but  is  to  continue  until  my  estate  is  settled 
and  the  legacies  are  paid. 

I  order  and  direct  that,  if  at  the  time  of  my  de- 
cease I  hold  any  claim  or  claims  against  A.  B.  the 
husband  of  my  daughter  C.  D.,  said  claim  or  claims 
shall  be  regarded  as  a  portion  of  my  estate  and  shall 
be  deducted  from  the  legacy  hereinbefore  given  to 
my  said  daughter  C.  D.  Interest  upon  said  claim 
or  claims  shall  be  charged  at  the  rate  of  five  per 
cent  per  annum  to  the  time  when  my  estate  is 
settled  and  legacies  are  paid. 

All  sums  of  money  due  me  at  the  time  of  my  de- 
cease from  any  of  my  children  whether  the  same  be 
evidenced  by  promissory  notes,  book  accounts  or 
in  any  other  way,  shall  not  be  enforced  against  said 


LEGACY   TO   A   DEBTOK  263 

children  but  shall  be  regarded  as  absolute  and  ir- 
revocable gifts,  and  any  evidence  of  indebtedness 
signed  by  any  children  shall  be  cancelled  and  given 
up  to  them. 

Another  form  is  given  on  p.  509. 

After  making  his  will  a  testator  often  gives  a 
legatee  certain  property  which  he  intends  as  a 
satisfaction  of  the  legacy  hi  whole  or  hi  part.  "If 
therefore  a  testator,  after  having  made  his  will,  con- 
taining a  general  bequest  to  a  child  or  stranger, 
makes  an  advance,  or  does  other  acts,  which  can  be 
shown  by  express  proof,  or  reasonable  presumption, 
to  have  been  intended  by  the  testator  as  a  satisfac- 
tion, discharge  or  substitute  for  the  legacy  given,  it 
shall  be  deemed  in  law  to  be  an  ademption  of  the 
legacy.  Hence  it  is,  that  when  a  father  has  given 
a  child  a  legacy  as  a  portion  or  provision  for  such 
child,  and  afterwards,  upon  the  event  of  the  mar- 
riage, or  other  similar  occasion,  makes  an  advance 
to  such  child,  as  and  for  a  portion  or  provision, 
though  to  a  smaller  amount  than  the  legacy,  it  shall 
be  deemed  a  substitute  for  the  provision  contem- 
plated by  the  will,  and  thence  as  an  ademption  of 
the  whole  legacy.  This  is  founded  on  the  con- 
sideration, that  the  duty  of  a  father  to  make  a 
provision  for  his  child  is  one  of  imperfect  obliga- 
tion and  voluntary,  that  his  power  of  disposing  is 
entire  and  uncontrolled,  that  he  is  the  best  and  the 
sole  judge  of  his  ability  in  this  respect,  and  of  the 
amount  which  it  is  proper  for  him  to  appropriate  to 


264  TESTAMENTARY   FORMS 

any  one  child,  as  such  provision.  The  law  pre- 
sumes, in  the  absence  of  other  proof,  that  it  was  the 
intention  of  the  father  by  the  legacy  to  make  such 
provision,  that  it  was  not  his  intention  to  make  a 
double  provision,  that  when  after  the  will  is  exe- 
cuted, another  provision  is  made  for  the  same 
child,  the  original  intent  of  making  such  provision 
by  will  is  accomplished  and  completed,  that  the  pur- 
pose of  giving  the  legacy  is  satisfied,  and  of  course 
concludes,  that  the  legacy  itself  is  adeemed.  And 
if  the  subsequent  portion  or  provision  made  in  the 
lifetime  of  the  testator,  is  less  than  the  legacy,  still 
it  operates  as  an  ademption  of  the  whole  legacy, 
not  because  a  smaller  sum  can  be  a  payment  of  a 
larger,  but  because  it  manifests  the  will  and  intent 
of  the  testator,  who  is  the  sole  disposer  of  his  own 
bounty,  to  reduce  the  amount  of  the  provision, 
originally  contemplated,  when  he  made  his  will. 
Hartop  v.  Whitmore,  1  P.  Wms.  681;  Clarke  v.  Bur- 
goyne,  1  Dick.  353."  Richards  v.  Humphreys,  15 
Pick.  133,  136;  Rood  on  Wills,  §  715.  See  Hayward 
v.  Loper,  147  111.  41 ;  Security  Co.  v.  Brinley,  49  Conn. 
48.  In  some  States  statutes  provide  that  advance- 
ments are  not  to  be  regarded  as  ademptions  of 
general  legacies,  unless  the  intention  is  shown  by 
the  testator  in  writing.  See  Remsen  on  Wills,  310, 
311.  "  Payment  of  a  legacy  provided  for  in  a  will 
made  by  the  testator  before  the  will  takes  effect  by 
his  death,  is  regarded  as  consistent  with  and  carry- 
ing out  the  intention  expressed  in  the  will;  but  to 
apply  a  gift  made  before  the  execution  of  the  will  in 


LEGACY   TO   A   DEBTOR  265 

full  or  part  satisfaction  of  a  legacy  given  by  the  will 
necessarily  varies  the  terms  of  the  legacy,  and 
allows  the  intention  expressed  in  the  will  to  be  con- 
trolled by  a  different  intention  proved  by  parol. 
If  a  gift  is  made  by  a  parent  to  a  child,  it  may  be 
presumed  to  be  an  advancement  of  a  portion  of  the 
parent's  estate  which  he  has  given  to  the  child  by 
will,  or  which  the  law  may  give  if  the  parent  dies 
intestate,  but  if  after  making  such  gift  the  parent 
by  will  fixes  the  portion  of  the  child,  the  former  gift 
cannot  be  taken  as  a  part  of  the  portion  unless 
made  so  by  the  will.  It  cannot  by  possibility  be 
an  ademption  of  the  legacy.  If  it  can  operate  as 
a  satisfaction  of  the  legacy,  it  must  be  upon  other 
grounds  than  the  right  of  the  testator  to  adeem  a 
legacy.  Paine  v.  Parsons,  14  Pick.  318;  Richards  v. 
Humphreys,  15  Pick.  133;  Jones  v.  Richardson,  5 
Met.  247,  253;  Hartwell  v.  Rice,  1  Gray,  587,  594. 
See  authorities  collected  hi  note  to  Chancey's  case, 
2  White  &  Tudor's  Lead.  Gas.  in  Eq.  (4th  Am.  ed.) 
782  et  seq."  Jaques  v.  Swasey,  153  Mass.  596,  597. 
"Where  the  payment  made  by  the  testator  subse- 
quently to  the  execution  of  a  will  is  equal  to  or 
exceeds  the  amount  of  the  legacy,  it  will  be  deemed 
a  satisfaction  or  an  ademption  thereof."  Tanton 
v.  Keller,  167  111.  129,  142. 

"We  know  of  no  authority  which  would  justify 
a  holding  that  a  general  legacy,  which  is  payable 
out  of  a  particular  fund  or  in  a  specified  manner, 
may  not  be  satisfied  in  case  the  legatee  receives  the 
amount  thereof  from  the  testator  in  his  lifetime  out 


266  TESTAMENTARY   FORMS 

of  the  very  fund  devoted  to  the  payment  of  the  be- 
quest, provided  it  clearly  appears  that  the  amount 
was  given  and  received  with  the  intention  that  it 
should  work  an  ademption  of  the  legacy."  Roquet 
v.  Eldridge,  118  Ind.  147,  151.  "Where  a  parent 
makes  a  provision  by  will  in  favor  of  a  child  to  whom 
he  had  previously  secured  a  portion  by  marriage 
settlement  or  otherwise,  the  presumption  is  that 
such  provision  was  intended  as  a  satisfaction  of  the 
portion,  atnd  it  will  be  held  to  be  such  in  the  absence 
of  evidence  proving  the  contrary.  In  such  case  a 
double  portion  will  not  be  allowed  unless  it  plainly 
appears  that  the  testator  so  intended."  19  Am. 
&  Eng.  Encyc.  of  Law  (2d  ed.),  1246.  "The  re- 
execution  of  the  will  and  codicils  .  .  .  can  have  no 
other  effect  than  a  republication.  .  .  .  They  were  the 
same  instrument  after,  as  before,  the  re-execution. 
That  a  republication  will  not  revive  a  satisfied 
legacy  is,  I  think,  established  by  the  authorities." 
Langdon  v.  Astor,  16  N.  Y.  1,  57. 

The  following  forms  may  be  of  service: 

I  direct  and  declare  that  any  gifts  and  payments 
made  by  me  after  the  execution  of  this  will  to  any 
legatee  herein  or  in  any  codicil  hereto  shall  be  hi 
lieu  of  the  legacy  to  such  legatee  if  equal  thereto  or 
in  excess  thereof,  and  proportionately  in  lieu  of  the 
legacy,  if  less  than  the  amount  thereof. 

I  give,  devise  and  bequeath  to  the  Wrightworth 
Hospital  of,  etc.,  for  the  uses  and  purposes  for  which 


LEGACY   TO   A    CREDITOR  267 

said  Hospital  was  incorporated,  the  sum  of  one 
hundred  thousand  dollars.  I  declare  and  direct, 
however,  that  any  sum  or  sums  of  money  that  I  may 
hereafter  give  to  said  Hospital  shall  be  regarded  as 
so  much  advanced  on  account  of  this  legacy,  which 
shall  be  reduced  accordingly  by  the  amount  or 
amounts  of  such  payments.  But  no  interest  is  to 
be  charged  thereon. 

2.   Legacy  to  a  Creditor. 

Generally  a  legacy  to  one  of  the  testator's  creditors 
is  regarded  as  a  bounty  and  not  as  a  payment  of  his 
debt,  unless  that  intention  plainly  appears.  Parker 
v.  Coburn,  10  Allen,  82,  84.  But  "a  legacy,  exactly 
corresponding  in  amount  and  tune  of  payment  to 
an  existing  debt  of  the  testator  to  the  legatee,  and 
given  by  a  will  which  contains  no  provision  indicat- 
ing a  different  intention,  is  to  be  presumed  to  be  hi 
satisfaction  of  the  debt,  and  not  in  addition  thereto." 
Allen  v.  Merwin,  121  Mass.  378,  380.  "The  legatee 
is  entitled  to  both  the  legacy  and  the  debt,  if  the 
legacy  is  in  any  way  less  favorable  than  the  debt, 
though  more  favorable  in  other  respects.  The  legatee 
is  entitled  to  both,  if  the  legacy  is  for  a  less  amount, 
not  as  soon  payable,  contingent,  or  uncertain  in 
amount  like  a  residue,  or  if  of  a  different  nature,  not 
directly  to  the  creditor,  or  given  before  the  debt  was 
contracted,  or  before  it  became  liquidated.  If  the 
will  requires  the  executor  to  pay  the  testator's  debts 
the  operation  of  the  rule  is  avoided."  Rood  on 
Wills,  §  740. 


268  TESTAMENTARY   FORMS 

"A  direction  by  the  testator  that  his  debts  and 
legacies  should  be  paid,  is  sufficient  to  rebut  the 
presumption  that  a  debt  is  satisfied  by  a  legacy." 
Hawkins  on  Wills  (2d  Am.  ed.),  299.  The  testator 
should  make  his  intention  clear  hi  the  will. 

A  form  may  be  found  on  p.  516. 


CHAPTER  XIII 

PAYMENT  OF  AND  INTEREST  UPON  LEGACIES 

FOR  convenience  we  consider  here  the  payment  of 
debts. 

In  most  jurisdictions  statutes  provide  that  an 
executor  or  administrator  is  not  liable  to  an  action 
by  a  creditor  for  a  certain  period  after  giving  bond 
and  receiving  his  testamentary  letter  or  letter  of 
administration.  In  many  cases  this  period  is  fixed 
as  a  year,  and  it  is  provided  that  there  is  an  excep- 
tion in  the  case  of  a  demand  which  would  not  be 
affected  by  the  insolvency  of  the  estate  or  if  the 
action  is  brought  after  the  estate  has  been  repre- 
sented insolvent,  for  the  purpose  of  ascertaining  a 
contested  claim.  Demands  which  would  not  be 
affected  by  the  insolvency  of  an  estate  are  in  most 
cases  those  like  funeral  expenses,  etc.  Statutes 
also  frequently  provide  that  if  an  executor  or  ad- 
ministrator does  not  have  notice  within  a  certain 
time  (generally  a  year)  of  demands  which  would 
authorize  him  to  represent  the  estate  insolvent,  he 
may,  after  that  time,  pay  the  debts  without  being 
liable  for  payments  made  before  notice  of  the  de- 
mand; and  if  he  pays,  before  notice  of  the  demand 
of  any  other  creditor,  the  whole  of  the  estate,  he 
shall  not  be  required  to  represent  the  estate  insolvent, 

269 


270  TESTAMENTARY   FORMS 

but  in  an  action  may  prove  payments.  So  also 
provision  is  sometimes  made  as  to  extent  of  liability 
if  residue  is  insufficient  to  meet  new  claims.  So 
statutes  often  provide  that  if  it  appears  upon  settle- 
ment of  the  account  that  the  whole  estate  has  been 
exhausted  in  paying  the  charges  of  administration 
and  debts  entitled  to  a  preference  over  common 
creditors,  such  settlement  shall  be  a  bar,  although 
the  estate  has  not  been  represented  insolvent. 

As  an  executor  or  administrator  is  generally  only 
justified  in  paying  legal  demands,  a  testator  may, 
in  some  cases,  desire  to  make  provision  as  to  a  de- 
mand not  enforceable  against  his  estate. 

A  testator  may  desire  to  give  special  instructions 
as  to  the  payment  of  his  debts,  perhaps  in  the  nature 
of  a  warning  to  defer  payments  until  the  time  arrives 
when  the  executor  may  be  sued.  This  subject  of 
debts  is  also  treated  on  p.  329  et  seq. 

A  testator  may  desire  to  know  something  of  the 
law  as  to  the  limitation  of  actions  by  creditors.  It  is 
sometimes  provided  that  an  executor  or  adminis- 
trator shall  not  answer  to  an  action  by  a  creditor  not 
commenced  within  a  certain  period.  Statutes  often 
provide  as  to  extension  of  time  for  creditor's  actions 
by  receipt  of  new  assets,  and  also  for  a  creditor  whose 
right  of  action  accrues  after  the  two  years.  So  also 
provision  is  often  made  to  the  effect  that  if  a  person 
entitled  to  bring  or  liable  to  an  action  dies  before  the 
expiration  of  the  time  limited  or  within  a  certain 


PAYMENT   OF  AND    INTEREST   UPON    LEGACIES      271 

number  of  days  after  the  expiration  of  that  time,  and 
the  cause  of  action  by  law  survives,  the  action  may 
be  commenced  by  the  executor  or  administrator  at 
any  time  within  the  period  within  which  the  deceased 
might  have  brought  the  action  or  within  a  certain 
time  after  his  giving  bond  for  the  discharge  of  his 
trust  and  against  the  executor  or  administrator  in 
accordance  with  the  statutory  limitations  of  actions 
against  the  executor  or  administrator  by  creditors 
of  the  deceased.  So  also  there  are  frequently  statutes 
as  to  liability  of  heirs,  devisees,  legatees,  etc.,  after 
the  estate  has  been  settled  by  the  executor,  etc. 

In  nearly  all  jurisdictions  there  are  ample  statutes 
in  regard  to  the  payment  of  legacies  and  the  settle- 
ment of  estates.  These  often  provide  that  if  money 
ordered  by  a  decree  of  court  to  be  paid  over  remains 
for  six  months  or  more  unclaimed,  the  executor, 
administrator,  guardian,  or  trustee  may  deposit  it 
in  a  savings  bank  or  invest  it  in  certain  stocks  for 
the  person  entitled  thereto.  So  they  also  often 
provide  that  if  the  residence  of  a  legatee  or  of  a 
person  entitled  to  a  portion  of  a  trust  fund  under 
an  order  of  distribution  is  unknown,  or  if  he  is  a 
minor  without  a  legal  guardian,  the  court  may  order 
that  the  legacy  or  the  share  of  the  trust  fund  be 
deposited  in  bank  or  otherwise  invested.  In  Massa- 
chusetts there  is  the  following  statute  (Rev.  Laws, 
c.  136,  §3): 

"A  decree  allowing  a  will  or  adjudicating  the 
intestacy  of  the  estate  of  a  deceased  person  in  any 
court  in  this  commonwealth  having  jurisdiction 


272  TESTAMENTARY   FORMS 

thereof,  shall  after  two  years  from  the  rendition  of 
such  decree,  or  if  proceedings  for  a  reversal  thereof 
are  had,  after  two  years  from  the  establishment  of 
such  decree,  be  final  and  conclusive  in  favor  of 
purchasers  for  value,  in  good  faith,  without  notice 
of  any  adverse  claim,  of  any  property,  real  or  per- 
sonal, from  devisees,  legatees,  heirs,  executors,  ad- 
ministrators, or  guardians;  and  in  favor  of  executors, 
administrators,  trustees,  and  guardians,  who  have 
settled  their  accounts  in  due  form  and  have  in  good 
faith  disposed  of  the  assets  of  the  estate  in  accordance 
with  law;  and  also  in  favor  of  persons  who  have  in 
good  faith  made  payments  to  executors,  administra- 
tors, trustees,  or  guardians.  If  a  subsequent  decree 
reverses  or  qualifies  the  decree  so  originally  rendered, 
heirs,  devisees,  legatees,  and  distributees  shall  be 
liable  to  a  subsequent  executor,  administrator,  or 
other  person  found  entitled  thereto,  for  any  pro- 
ceeds or  assets  of  the  estate  received  by  them  under 
the  former  decree,  and  in  such  case  proceeds  of  real 
property  shall  be  treated  as  real  property.  The 
provisions  of  this  section  shall  not  make  an  adjudica- 
tion of  the  fact  of  death  conclusive." 

There  are  statutes  in  most  jurisdictions  to  the 
effect  that  if  the  court  finds  that  a  partial  distribu- 
tion of  the  personal  property  of  an  estate  in  process 
of  settlement  therein  can,  without  detriment  to  such 
estate,  be  made  to  the  persons  entitled  thereto,  the 
court  may,  subject  to  the  rights  of  creditors  and 
after  notice,  order  such  partial  distribution  to  be 
made. 


PAYMENT   OF   AND   INTEREST   UPON   LEGACIES      273 

As  to  the  time  when  legacies  are  payable  it  is 
stated  in  2  Williams  on  Executors  (Am.  ed.),  1239, 
that  "the  period  fixed  by  the  civil  law  for  that  pur- 
pose, which  our  courts  have  also  prescribed,  and 
which  is  analogous  to  the  Statute  of  Distribu- 
tions ...  is  a  year  from  the  testator's  death,  dur- 
ing which  it  is  presumed  that  the  executor  may  fully 
inform  himself  of  the  state  of  the  property."  "It  has 
been  generally  assumed  that  no  action  would  lie  until 
after  the  expiration  of  one  year.  By  the  civil  law, 
executors  have  the  period  of  one  year  from  the  death 
of  the  testator  to  pay  legacies,  and  the  same  period 
in  conformity  therewith  has  been  adopted  by  the 
courts  of  Chancery.  Bac.  Ab.  Legacy,  K.  Smell  v. 
Dee,  2  Salk.,  415.  In  Marsh  v.  Hague,  1  Edw.  Ch. 
174,  it  is  said  that,  as  a  general  rule,  legacies  are  pay- 
able in  one  year."  Brooks  v.  Lynde,  7  Allen,  64,  67. 

In  some  States  the  matter  is  determined  by  stat- 
utes. If  the  testator  is  to  make  provision  in  his 
will,  his  intention  should  be  clearly  expressed,  and 
such  expressions  as  "as  soon  as  convenient"  should 
be  avoided.  Griggs  v.  Veghte,  47  N.  J.  Eq.  179, 187. 

It  has  been  held  that  the  statute  of  limitations  is 
no  defence  to  an  action  for  a  legacy,  so  long  as  the 
executors  hold  the  assets  of  the  estate.  Kent  v. 
Dunham,  106  Mass.  586,  591.  "Upon  a  person's 
leaving  his  usual  home  and  place  of  residence  for 
temporary  purposes  of  business  or  pleasure,  and  not 
being  heard  of,  or  known  to  be  living,  for  the  term 
of  seven  years,  the  presumption  of  life  then  ceases, 
and  that  of  his  death  arises.  But  this  presumption 


274  TESTAMENTARY   FORMS 

may  be  rebutted  by  counter  evidence,  or  by  a  con- 
flicting presumption.  And  in  Prudential  Assur.  Co. 
v.  Edmonds,  2  App.  Cas.  487,  509,  it  was  stated  by 
Lord  Blackburn  to  be  'necessary,  in  order  to  raise 
the  presumption,  that  there  should  have  been  an 
inquiry  and  search  made  for  the  man  among  those 
who,  if  he  was  alive,  would  be  likely  to  hear  of 
him.' "  Stockbridge,  Petr.,  145  Mass.  517,  519. 

While  statutes  referred  to  above  make  certain 
provisions  as  to  unclaimed  legacies,  yet  if  the  person 
to  be  named  as  legatee  has  not  been  heard  of  or 
from  for  some  tune,  it  may  be  well  to  make  provision 
in  the  will  as  to  payment  of  the  legacy. 

Forms  like  the  following  may  be  used: 

Absent  Legatees. 

I  give  my  friend  A.  B.,  who  has  not  been  heard 
from  for  many  years,  a  legacy  of  five  thousand  dol- 
lars provided  he  appears  and  claims  the  same  within 
two  years  after  the  proving  of  this  will.  If  he 
does  not  appear  and  claim  the  legacy  at  the  expira- 
tion of  said  two  years,  then  I  give  the  said  legacy, 
which  shall  not  bear  interest,  to  my  residuary 
legatee. 

I  give  A.  B.,  whose  whereabouts  are  unknown,  a 
legacy  of  one  thousand  dollars.  If  he  does  not 
appear  and  claim  the  legacy  at  the  expiration  of  two 
years  from  the  proving  of  this  will,  then  I  direct  my 
executor  to  deposit  the  same  without  any  interest 
thereon  in  the  People's  Savings  Bank  of,  etc.,  and, 


PAYMENT   OF   AND   INTEREST   UPON    LEGACIES      275 

if  he  does  not  appear  at  the  expiration  of  five  years 
from  the  date  of  said  deposit  and  claim  the  same 
with  the  interest  thereon  then  due,  I  give  said  de- 
posit with  the  interest  thereon  to  etc. 

I  give  and  bequeath  one  bond  of  the  Albany 
Central  Railroad  of  the  denomination  of  one  thou- 
sand dollars  and  numbered  837  to  A.  B.,  who  has 
not  been  heard  of  for  the  last  ten  years.  If  he  does 
not  appear  at  the  expiration  of  two  years  from  the 
proving  of  this  will,  and  claim  the  above  legacy, 
then  I  direct  my  executor  to  retain  said  bond  for 
two  years  longer,  cashing  the  coupons  as  they  mature. 
If  at  the  expiration  of  said  two  years,  which  will  be 
four  years  from  the  proving  of  this  will,  the  said 
A.  B.  does  not  appear  and  claim  said  bond  and  the 
proceeds  of  the  coupons,  then  I  give  said  bond  and 
proceeds  to,  etc. 

I  give  X.  Y.  the  sum  of  five  thousand  dollars  to 
be  paid  to  him  just  two  years  and  six  months  from 
the  date  of  the  probate  of  this  will  without  any  in- 
terest thereon  during  said  two  years  and  six  months; 
and  as  the  said  X.  Y.  has  not  been  heard  of  or  from 
for  several  years,  I  direct  my  said  executor  A.  B.,  if 
the  said  X.  Y.  does  not  claim  said  five  thousand 
dollars  at  the  expiration  of  said  two  years  and  six 
months,  to  deposit  the  same  in  five  different  savings 
banks,  the  deposit  in  each  bank  to  be  one  thousand 
dollars,  and  to  stand  hi  the  name  of  "A.  B.  executor 
of  the  will  of  C.  D.  in  trust  for  X.  Y."  If  after  the 


276  TESTAMENTARY   FORMS 

expiration  of  said  two  years  and  six  months  and  at  or 
before  the  expiration  of  five  years  from  the  probate 
of  this  will,  the  said  X.  Y.  either  personally  or  by 
agent  or  attorney  makes  demand  for  said  deposits, 
the  same,  with  all  interest  thereon,  shall  be  paid  to 
him  or  such  agent  or  attorney;  otherwise  at  the 
expiration  of  said  five  years  to  E.  F.,  my  residuary 
legatee.  I  direct  my  said  executor  to  expend  from 
the  general  funds  of  my  estate  a  sum  not  to  exceed 
two  hundred  dollars  in  payment  of  insertions  in 
newspapers,  in  such  parts  of  the  world  as  he  may 
think  proper,  asking  £or  information  relative  to  the 
said  X.  Y. 

At  common  law  real  estate  was  not  liable  for  the 
payment  of  any  legacy,  unless  there  was  some 
provision  in  the  will  to  show  a  different  intention. 
Such  is  the  law,  unless  changed  by  statute.  It  is 
well  for  the  attorney  therefore  to  ascertain  if  such  is 
the  law  of  the  testator's  domicile,  and,  if  so,  to  provide 
in  the  will  that  the  payment  of  the  general  legacies 
be  charged  on  the  real  estate.  However,  it  is  often 
said  that  a  charge  may  be  implied  from  a  residuary 
clause  disposing  of  the  realty  and  personalty  in  one 
mass;  from  a  devise  to  the  executor  directing  him 
to  pay  legacies;  from  an  intention  to  charge  land 
with  the  payment  of  legacies  from  the  fact  of  giving 
legacies  to  a  large  amount,  if  the  testator  then  had 
and  knew  that  he  had  insufficient  property,  out  of 
which  the  payment  could  be  made;  from  a  specific 
bequest  of  all  the  testator's  personalty  to  others; 


PAYMENT   OF  AND   INTEREST   UPON   LEGACIES       277 

and  from  the  fact  that  the  legatee  is  a  child  or  grand- 
child of  the  testator  and  no  provision  is  made  for 
him  except  the  legacy.  See  Rood  on  Wills,  §  748 
et  seq. 

In  some  States  there  are  statutes  which  provide 
that  a  legatee  may  recover  his  legacy  in  an  action 
of  law.  Brooks  v.  Lynde,  7  Allen,  64.  So  also  statutes 
sometimes  provide  that  legacies  due  from  or  in  the 
hands  of  an  executor  as  such  may  be  reached  by  gar- 
nishment or  trustee  process. 

"At  common  law  the  subject  of  paying  legacies 
was  fraught  with  hazard  and  danger,  not  always 
avoidable  by  the  most  prudent  executor;  but  in 
America  .  .  .  executors  and  administrators  may 
fully  protect  themselves  from  any  liability  to  cred- 
itors by  a  simple  compliance  with  the  plain  provi- 
sions of  the  statutes."  2  Woerner  on  American  Law 
of  Administration,  §  451.  "It  is  evident,  however, 
that  the  retention  of  the  estate  for  the  whole  pe- 
riod of  administration  may  be  onerous  and  incon- 
venient, both  to  the  executor  or  administrator  and 
to  the  legatee  or  distributee;  and  where  there  is  no 
other  hindrance  to  a  distribution  but  the  possibility 
of  claims  being  proved,  the  inconvenience  may  be 
obviated  by  providing  for  the  payment  of  such 
debts  in  some  other  manner.  To  this  end,  the  Eng- 
lish statute  of  distributions  and  the  statutes  of  most 
of  the  United  States  enable  distribution  to  be  made 
upon  the  execution  by  the  distributees  of  refunding 
bonds,  with  sufficient  sureties,  conditioned  to  refund 


278  TESTAMENTARY   FORMS 

to  the  administrator  so  much  of  the  assets  received 
as  may  be  necessary  to  pay  debts  and  costs  law- 
fully proved  against  the  estate.  The  same  principle 
is  applicable  to  the  payment  of  legacies;  hence,  a 
residuary  legatee  may  compel  the  payment  of  a 
legacy  upon  giving  a  sufficient  bond  for  the  protec- 
tion of  the  executor,  administrator,  or  any  person 
interested,  although  it  remains  undecided  as  to  one 
of  the  legatees  whether  he  takes  an  estate  or  a 
power."  2  Woerner  on  American  Law  of  Adminis- 
tration, §  560. 

A  testator  frequently  puts  a  provision  in  his  will 
directing  his  executor  not  to  pay  legacies  until  the 
period  (usually  two  years)  has  elapsed  from  the 
probate  of  the  will,  within  which  creditors  must 
begin  actions  against  the  estate.  As  in  many  juris- 
dictions writs  may  be  returnable  at  any  return  day 
within  a  certain  period,  say  three  months,  after  the 
date  of  the  writ,  and  as  the  date  of  the  writ  is  prima 
facie  the  commencement  of  an  action,  though  the 
date  is  only  a  day  or  two  before  the  action  would 
be  barred  by  the  statute  of  limitations,  and  though 
the  writ  is  not  served  until  several  weeks  after  its 
date,  it  may  be  well  to  make  the  period  in  which 
legacies  may  be  paid  twenty-eight  months  or  more 
from  the  probate  of  the  will.  See  Gardner  v.  Web- 
ber, 17  Pick.  407. 

"A  legatee  or  creditor  ought  not  to  be  expected 
to  receive  payment  of  his  legacy  or  debt  in  such 
instalments  as  the  executor  may,  in  his  own  discre- 
tion, see  fit  to  apportion  to  him.  The  existence  of 


PAYMENT  OF  AND  INTEREST  UPON  LEGACIES   279 

the  power  in  the  court  to  order  partial  payments, 
and  its  frequent  exercise,  do  not  indicate  that  the 
executors  have  any  such  power,  but  rather  other- 
wise." Welch  v.  Adams,  152  Mass.  74,  85. 

The  following  forms  relative  to  the  payment  of 
legacies  may  be  of  service: 

Payment  of  Legacies. 

It  is  my  will  and  intention  that  my  estate  shall 
not  be  fully  settled  until  three  years  have  elapsed 
from  the  date  of  my  decease.  I  direct  my  executors 
to  pay  all  legacies  given  hi  this  will  at  the  expira- 
tion of  said  three  years  with  the  distinct  under- 
standing that  the  legatees  are  to  receive  the  exact 
amounts  of  their  legacies  without  any  interest 
thereon. 

I  hereby  declare  and  direct  that  my  executors 
shall  not  pay  any  legacies  given  by  this  will  until 
three  years  have  elapsed  from  the  date  of  my  death; 
and  no  interest  is  to  be  paid  upon  any  such  legacies, 
including  those  which  are  specific,  and  it  is  my  will 
that  all  dividends  or  interest  upon  specific  legacies 
accruing  during  said  three  years  shall  fall  into  the 
residuum. 

I  direct  that  all  legacies  given  by  this  will  shall 
be  paid  as  soon  as  my  executors  can  legally  do  so, 
with  interest  at  the  rate  of  five  per  cent  per  annum, 
,to  be  reckoned  from  the  day  of  my  death  to  the 
time  of  payment. 


280  TESTAMENTARY   FORMS 

My  executors  are  hereby  authorized  to  pay,  in 
their  discretion,  at  any  time  before  the  expiration 
of  two  years  from  the  date  of  the  issuing  of  letters 
testamentary  to  them,  the  legacies  given  in  this  will, 
but  the  legatees  are  to  receive  no  interest  on  their 
legacies. 

All  the  legacies  given  herein  shall  be  paid  in  two 
years  from  the  date  of  the  proving  of  this  will  - 
the  pecuniary  legacies  with  interest  at  the  rate  of 
five  per  cent  per  annum  and  the  specific  legacies 
of  stock  and  bonds  with  an  amount  equal  to  the 
dividends  collected  and  coupons  cashed  by  my 
executors. 

I  direct  that  all  the  legacies  given  herein  shall  be 
paid  as  soon  as  may  be  after  my  decease,  with  inter- 
est at  the  rate  of  six  per  cent  per  annum,  from  the 
date  of  my  decease  until  the  day  of  payment. 

I  direct  that  the  legatees  of  either  specific  or 
pecuniary  legacies,  and  the  devisees  of  specific  de- 
vises under  this  will,  shall  not  be  entitled  in  the  one 
case  to  the  legacies  and  in  the  other  to  the  devises 
until  three  years  shall  have  elapsed  from  the  proving 
of  this  will.  All  rents,  produce,  interest,  and  income 
arising  from  said  legacies  and  devises  during  said 
three  years  shall  fall  into  the  residue  of  my  estate, 
and  the  legatees  and  devisees  shall  receive  their 
legacies  and  devises  at  the  expiration  of  said  three 
years,  without  any  rent,  produce,  income,  or  interest 


PAYMENT   OF  AND   INTEEEST   UPON    LEGACIES      281 

thereon.  I  have  hereinbefore  by  the  " sixth"  article 
of  this  will  given  A.  B.  a  specific  bequest  of  certain 
bonds,  and  by  the  "seventh"  article  C.  D.  a  specific 
bequest  of  certain  shares  of  stock.  Whereas  all 
coupons  of  said  bonds  due  and  payable,  and  all 
dividends  on  said  shares  paid,  during  said  three 
years  are,  of  course,  as  above  directed,  to  fall  into 
the  residue,  yet,  that  there  may  be  no  misunder- 
standing, I  direct  that  if  at  the  expiration  of  said 
three  years  any  coupon  or  coupons  on  the  bonds  is 
nearly  but  not  yet  payable,  it  shall  belong  and  be 
paid  to  A.  B.,  and  that  if  any  dividend  has  been 
declared  on  the  shares,  but  is  not  yet  payable,  it 
shall  belong  and  be  paid  to  C.  D.  All  taxes  due 
on  specific  devises  during  said  three  years  shall 
of  course  be  paid  from  the  general  funds  of  my 
estate. 

Other  forms  may  be  found  on  pp.  507,  561. 

Frequently  a  testator  provides  that  pecuniary 
legacies  shall  be  paid  in  property  and  not  in  money. 
This  is  a  convenient  way  of  payment,  and  is  generally 
called  distribution  in  kind.  Often  the  method  of 
determining  the  value  of  the  securities  or  other  assets 
is  specifically  prescribed. 

The  following  are  offered  as  forms: 

Distribution  in  Kind. 

In  paying  the  pecuniary  legacies  given  by  this 
will  I  do  not  require  my  executors  to  sell  or  realize 
on  the  property  owned  by  me  at  the  time  of  my 


282  TESTAMENTARY   FORMS 

decease;  but  I  declare  that  a  transfer  and  delivery 
to  any  legatee  in  kind  of  any  property  at  its  mar- 
ket value,  shall  be  payment  of  such  legacy  and  a 
full  and  complete  protection  and  discharge  to  my 
executors. 

I  authorize  and  empower  my  executors  to  dis- 
tribute in  kind  among  the  legatees  under  this  will  in 
payment  of  their  legacies  any  stocks,  bonds  or  other 
securities  of  my  estate  at  valuations  to  be  fixed  by 
them  in  their  unfettered  discretion. 

In  the  payment  of  the  pecuniary  legacies  given 
by  this  will  I  direct  my  executors  to  transfer  and 
deliver  to  the  legatees  securities  in  which  my  personal 
estate  is  invested  at  their  market  value. 

If  at  the  time  of  my  decease  my  estate  consists  hi 
great  part  of  bonds,  as  it  does  at  present,  then  I 
confer  upon  my  executors  full  power  and  authority 
in  their  discretion  to  pay  the  bequests  given  in  this 
will  in  bonds  or  partly  hi  bonds  and  partly  in  money, 
the  legatees  in  all  cases  to  take  such  bonds  at  their 
market  value. 

I  hereby  authorize  and  empower  my  executors,  if 
they  deem  expedient,  to  pay  all  pecuniary  bequests 
given  in  this  will  by  the  transfer  to  the  legatees  of 
assets  and  property  of  my  estate  other  than  money 
at  such  valuation  as,  hi  their  honest  judgment  and 
discretion,  they  may  deem  just  and  fair. 


PAYMENT   OF  AND   INTEREST   UPON    LEGACIES      283 

I  direct  that  the  legacy  in  this  will  of  Fifty 
Thousand  Dollars  to  my  son  A.  B.  shall  be  paid 
in  the  stock  of  the  Blank  Company  at  its  market 
value. 

In  marshalling  the  assets  to  pay  my  debts  and 
legacies  my  executors  will  use  sound  discretion  and 
good  judgment;  and  if,  when  the  time  for  the  pay- 
ment of  the  pecuniary  legacies  arrives,  they  have 
not  sufficient  cash  with  which  to  pay  them,  then  I 
authorize  and  direct  my  executors  to  pay  such 
pecuniary  legacies  in  bonds  or  stock  or  both  at  a  fair 
and  reasonable  valuation,  to  be  determined  by  said 
executors,  and  their  judgment  and  conclusion  in  the 
matter  are  not  to  be  questioned  by  the  legatees  but 
are  to  be  binding  and  final. 

Whereas  in  the  settlement  of  my  estate  and  the 
payment  of  the  legacies  it  may  be  convenient  for  my 
executors  and  a  saving  of  expense  that  my  executors 
should  not  be  required  to  reduce  all  my  assets  to  cash, 
but  that  they  should  have  the  right  to  convey  and 
transfer  to  any  residuary  or  other  legatee  any  bonds, 
stocks,  notes,  or  other  property  constituting  my  es- 
tate, in  payment  of  the  bequest  to  such  legatee,  at 
such  price  and  on  such  terms  as  may  be  agreed  upon 
by  my  said  executors  and  the  legatee  receiving  said 
conveyance  or  transfer,  I  hereby  authorize  and  em- 
power my  said  executors  so  to  do;  and  I  declare 
that  any  such  conveyance  and  transfer  and  any 
contract  and  agreement  in  relation  thereto,  made  by 


284  TESTAMENTARY   FORMS 

my  said  executors  with  any  legatee,  shall  be  valid 
and  binding  on  my  estate. 

Another  form  will  be  found  on  p.  562. 

"  Difficulties  used  formerly  to  arise  as  to  the  cur- 
rency in  which  a  legacy  was  to  be  paid.  For  instance, 
if  a  testator  domiciled  in  Jamaica  or  Ireland  gave  a 
legacy  of  1,OOOZ.,  was  the  legacy  to  be  paid  in  the  cur- 
rency of  the  domicile  or  in  English  currency?  It  was 
settled  that  the  currency  of  the  domicile  must  prevail. 
Saunders  v.  Drake,  2  Atk.  466;  Pierson  v.  Garnet, 
2  B.  C.  C.  39,  47;  Malcolm  v.  Martin,  3  B.  C.  C.  50. 

"Such  questions  can  no  longer  arise.  But  a  some- 
what similar  question  may  still  create  a  difficulty. 
Suppose  a  testator  gives  a  legacy  of  10,000  rupees  or 
20,000  francs  to  a  legatee  in  England,  how  is  the 
value  to  be  ascertained?  Is  the  legacy  to  be  paid  at 
the  rate  of  exchange  of  the  day,  at  the  value  of  the 
rupee  or  franc  as  bullion,  at  the  current  value,  or  how? 
In  Cockerell  v.  Barber,  16  Ves.  461,  where  the  testator 
was  domiciled  in  India,  it  was  held  that  the  rupee 
was  to  be  taken  according  to  its  current  value  without 
regard  to  the  exchange  or  the  expense  of  remittance, 
but  the  decision  appears  to  leave  a  good  many  ques- 
tions open.  See  Manners  v.  Pearson  &  Son  (1898), 
1  Ch.  581."  Theobald's  Law  of  Wills  (7th  ed.),  845. 

A  will  duly  executed  in  England,  where  the  testa- 
tor resided  and  died,  contained  the  following  be- 
quest: "My  property  at  Boston,  North  America, 
under  the  care  of  J.  S.,  amounting  by  the  last  ac- 
count to  eleven  thousand  five  hundred  pounds,  I 


PAYMENT   OF  AND    INTEREST   UPON   LEGACIES      285 

desire  may  be  left  under  his  control  until  it  amounts 
to  twenty  thousand  pounds,  then  the  interest  to  be 
paid  to  A.,  and  the  principal  to  B.  (son  of  A.),  he 
having  no  children,  then  to  his  brothers  in  succession, 
on  the  demise  of  the  father  A.,  failing  in  male  issue 
in  the  family  of  the  said  A.,  then  the  twenty  thou- 
sand pounds  to  be  divided  among  any  female  children 
the  said  A.  may  leave."  J.  S.  was  named  in  the  will 
as  executor  and  trustee  and  had  previously  pur- 
chased, in  trust  for  the  testator,  land  situated  in 
Brighton,  near  Boston,  and  included  its  value  hi 
the  account  mentioned  in  said  bequest.  Held,  that 
the  testator's  interest  in  this  land  was  included  in  the 
bequest;  that  the  property  was  to  be  held  by  the 
trustee  until  it  amounted  to  twenty  thousand  pounds 
sterling,  computed  at  $4.44  to  the  pound;  and  the 
income,  after  that,  paid  to  A.  for  life,  and  the  princi- 
pal held  in  trust  until  A.'s  decease;  and  that  the 
further  limitations  could  not  be  determined  until 
that  time.  Otis  v.  Coffin,  7  Gray,  511.  An  executor 
at  the  tune  of  the  enactment  of  statutes  of  the 
United  States  making  treasury  notes  a  legal  tender 
for  payment  of  debts  was  held  not  to  be  bound  there- 
upon to  convert  money  in  his  hands  into  coin,  nor 
thereafter  to  require  payment  in  com  of  debts  due 
to  the  estate;  and  was  held  not  to  be  guilty  of  mal- 
administration in  receiving  and  paying  treasury 
notes  as  money  in  the  execution  of  his  trust,  nor 
could  he  be  required  to  account  in  coin  for  the  assets. 
Jackson  v.  Chase,  98  Mass.  286. 
A  will  proved  in  Massachusetts,  where  the  testator 


286  TESTAMENTARY   FORMS 

had  his  domicile,  directed  trustees  of  his  estate  "to 
raise  the  sum  of  one  hundred  and  fifty  thousand 
francs,  money  of  France,  and  to  apply  the  same  to 
the  fulfilment  of  a  certain  marriage  contract,"  made 
at  Geneva  in  Switzerland,  in  which  the  testator, 
the  father  of  the  future  wife,  agreed  to  pay  to  her 
an  annuity  of  six  thousand  francs,  money  of  France, 
to  cease  at  his  death  and  "be  then  converted  into  a 
capital  of  one  hundred  and  fifty  thousand  francs," 
which  should  "only  be  handed  over  to  the  future 
wife  or  to  her  children  against  a  sufficient  mortgage, 
or  any  other  equivalent  guaranty,  to  be  given  by  the 
future  husband."  After  the  death  of  the  testator 
the  husband  executed  an  instrument  at  Vienna  hi 
Austria,  renouncing  all  right  in  this  fund,  and  de- 
claring it  unnecessary  for  him  to  give  security  for 
a  sum  which  he  never  received.  Subsequently,  at 
Cracow  in  Austria,  where  the  husband  and  wife 
had  their  domicile  at  the  time,  an  ecclesiastical  court 
granted  to  her  a  decree  of  divorce  from  bed  and 
board  for  life,  for  his  criminal  conduct,  reserving  to 
her  and  to  their  son  "all  the  rights  of  property 
which  according  to  the  law  of  the  land  belong  to  an 
innocent  wife  and  the  children,"  and  declaring  that, 
"  notwithstanding  the  decree  of  divorce  for  life,  she 
remains  at  liberty  to  consent  to  live  together  with 
her  husband  in  case  he  should  bring  sincere  proofs" 
of  reformation.  By  the  law  of  Geneva  and  of 
Austria,  a  payment  of  the  fund  to  her,  without  due 
security  for  its  proper  investment  according  to  the 
marriage  contract,  would  not  discharge  the  trustees 


PAYMENT   OF   AND   INTEREST   UPON    LEGACIES      287 

from  responsibility,  notwithstanding  the  release  of 
the  husband  and  the  divorce.  Held,  that  the  amount 
to  be  raised  from  the  estate  for  the  fund  was  such 
a  sum,  computed  in  treasury  notes  of  the  United 
States,  as  would  purchase  a  hundred  and  fifty 
thousand  francs  deliverable  here;  and  that  the 
trustees  should  continue  to  hold  the  fund  in  trust 
for  the  benefit  of  the  wife,  until  the  further  order 
of  the  court,  with  liberty  to  apply  for  further  in- 
structions in  event  of  the  death  of  her,  or  of  her 
husband,  or  other  change  of  circumstances.  Bow- 
ditch  v.  Soltyk,  99  Mass.  136. 

In  many  States  there  are  now  statutes  providing 
for  the  taxation  of  legacies  and  distributive  shares 
or  of  collateral  legacies  and  successions.  "There  is 
no  doubt  that  a  testator  possesses  the  general  power 
to  relieve  the  legatees  from  the  payment  of  the  tax 
by  throwing  it  on  the  residue  of  the  estate  where  it 
is  sufficient  to  make  payment,  but  an  intention  that 
a  devise  shall  be  free  of  the  tax,  as  between  the  estate 
and  the  devisee,  must  clearly  appear."  Dos  Passos 
on  Inheritance  Tax  Law,  §  64.  It  is  always  advisable 
to  call  the  attention  of  the  testator  to  the  subject, 
for  he  may  not  wish  to  have  the  legatee  bear  the 
burden  of  the  tax.  On  the  other  hand  he  may  feel 
that  the  legatee  should  bear  such  burden.  In  the 
second  case  he  may  desire  to  express  his  intention 
as  well  as  in  the  first,  in  order  to  show  that  the 
matter  was  brought  to  his  notice. 

Forms  like  the  following  may  be  used : 


288  TESTAMENTARY   FORMS 

Legacy  Taxes. 

v  In  order  that  no  question  may  arise  as  to  my 
desire  and  intention,  I  declare  that  I  am  satisfied 
with  the  law,  which  provides  that  all  legacy  and 
succession  taxes  shall  be  paid  out  of  the  legacies 
themselves. 

The  amount  of  the  tax  imposed  by  law  upon  all 
legacies  and  devises  given  by  this  will  shall  be  paid 
from  the  general  funds  of  my  estate,  so  that  the 
legacies  and  devises  shall  be  received  by  the  legatees 
and  devisees  in  full  as  hereinbefore  given  without 
any  deduction  therefrom  whatever. 

I  declare  and  direct  that  the  inheritance  tax  im- 
posed upon  the  legacy  of  ten  thousand  dollars  given 
above  to  A.  B.  shall  be  paid  out  of  and  deducted  from 
said  legacy  of  ten  thousand  dollars;  but  that  the 
legacy  of  one  thousand  dollars  given  above  to  C.  D. 
shall  be  paid  to  him  in  full,  and  that  the  inheritance 
tax  imposed  thereon  shall  be  paid  by  my  executor 
out  of  the  general  funds  of  my  estate. 

I  direct  that  all  inheritance  and  other  taxes  shall 
be  paid  out  of  the  general  funds  of  my  estate,  and 
that  all  devises  and  legacies,  general  or  specific,  under 
this  will  shall  be  exempt  from  the  payment  thereof. 

I  direct  that  all  legacy  and  inheritance  or  other 
taxes  shall  be  paid  by  my  executors  out  of  my 
general  estate. 


PAYMENT   OF   AND   INTEREST   UPON   LEGACIES      289 

I  direct  that  all  legacies  and  annuities  given 
herein  shall  be  paid  legatees  and  annuitants  free 
from  inheritance  or  other  taxes. 

All  legacy  and  inheritance  taxes  shall  be  paid  out 
of  the  general  funds  of  my  estate,  but  taxes  of  every 
nature  imposed  upon  trust  estates  herein  created  are 
to  be  paid  from  the  income  of  such  estates  respectively. 

Questions  often  arise  as  to  the  payment  of  interest 
upon  pecuniary  legacies,  because  testators  are  not 
sufficiently  explicit  as  to  the  expression  of  their 
intention. 

It  is  a  general  rule  that  interest  is  payable  upon 
pecuniary  legacies  from  the  tune  when  they  are  due 
and  payable,  because  the  interest  follows  as  an 
accretion  to  the  principal  legacy,  and  does  not  de- 
pend upon  demand  or  default.  The  rule  in  most 
jurisdictions  is  that  legacies  draw  interest  at  the 
rate  of  six  per  cent  per  annum  from  one  year  from 
the  death  of  the  testator  or  from  the  date  of  the 
proving  of  the  will.  This  is  to-day  in  most  juris- 
dictions a  large  rate  of  interest,  and  it  is  probable 
that,  if  the  matter  is  brought  to  the  attention  of  the 
testator,  he  may  make  some  provision  in  his  will. 
It  is  often  stated  that  compound  interest  will  not 
be  collected  on  a  legacy,  if  it  does  not  appear  that 
the  failure  to  pay  arose  from  the  fault  of  the  executor. 

"Where  money  is  given  by  will  for  the  mainte- 
nance and  support  of  a  minor  child  of  the  testator 
who  has  no  other  means  of  support,  interest  is 


290  TESTAMENTARY   FORMS 

allowed  from  the  death  of  the  testator;  because  in 
such  case  the  presumption  is  that  the  testator  in- 
tended that  such  support  and  maintenance  should 
commence  immediately  after  his  decease.  The 
same  presumption  exists  when  a  legacy  is  given  to 
a  widow  in  lieu  of  dower,  and  no  other  means  of 
support,  during  the  first  year  after  the  death  of  the 
testator,  are  provided  by  the  will.  Williamson  v. 
Williamson,  6  Paige,  298,  305."  Pollard  v.  Pollard, 
1  Allen,  490,  491.  But  a  pecuniary  legacy  to  the 
widow  of  the  testator  domiciled  in  New  Hampshire 
when  he  died,  given  and  accepted  in  lieu  of  dower, 
homestead  rights,  and  a  distributive  share  in  the 
estate  to  be  paid  to  her  "as  soon  as  convenient" 
after  his  death,  and  accompanied  by  a  devise  of 
productive  real  estate  in  Massachusetts,  to  the 
considerable  income  of  which  she  became  at  once 
entitled,  was  held  in  Massachusetts  not  to  bear  in- 
terest until  the  end  of  one  year  from  the  death  of 
the  testator.  Welch  v.  Adams,  152  Mass.  74,  78. 

Generally  legacies  payable  at  a  certain  time  do 
not  bear  interest  until  that  time  arrives;  and  the 
exception  in  the  case  of  legacies  from  a  father  to  his 
minor  child,  for  whose  support  he  has  made  no 
other  provision,  does  not  apply  when  the  mother  is 
given  for  life  the  income  of  a  greater  portion  of  the 
property,  with  vested  remainder  to  the  children; 
because  the  testator  may  reasonably  be  presumed 
to  have  contemplated  that  the  mother  would,  if 
indeed  she  was  not  bound  to,  support  the  children 
while  under  age;  and  because  also  the  remainder 


PAYMENT   OF  AND    INTEREST   UPON    LEGACIES      291 

might,  if  necessary,  be  sold,  and  the  proceeds  ap- 
plied for  their  maintenance.  Merritt  v.  Richardson, 
14  Allen,  239. 

If  an  executor  should  pay  a  legacy  within  one 
year  from  the  tune  of  the  testator's  death,  the 
residuary  legatee  might  find  fault  on  the  ground 
that  the  interest  for  the  first  year  should  properly 
fall  into  the  residuum. 

In  some  States  it  is  provided  by  statute  that  if 
an  annuity,  or  the  use,  rent,  income,  or  interest  of 
property,  real  or  personal,  is  given  by  will,  deed,  or 
other  instrument  to  or  in  trust  for  the  benefit  of  a 
person  for  life  or  until  the  happening  of  a  con- 
tingency, such  person  will  be  entitled  to  receive  and 
enjoy  the  same  from  and  after  the  decease  of  the 
testator,  unless  it  is  otherwise  provided  in  such  will 
or  instrument. 

It  has  already  been  stated  that  "specific  legacies 
are  considered  as  separated  from  the  general  estate, 
and  appropriated  at  the  tune  of  the  testator's  death; 
and,  consequently,  from  that  period,  whatever  pro- 
duce accrues  upon  them,  and  nothing  more  or  less, 
belongs  to  the  legatee."  2  Williams  on  Executors 
(Am.  ed.),  741.  See  p.  241. 

The  following  are  offered  as  forms  relative  to  the 
testator's  intention  as  to  the  payment  of  interest 
upon  legacies: 

Interest  upon  Legacies. 

I  direct  that  the  pecuniary  legacies  herein  given 
shall  be  paid  two  years  and  four  months  after  the 


292  TESTAMENTARY   FORMS 

proving  of  this  will  and  that  no  interest  shall  be  paid 
thereon. 

I  direct  that  the  pecuniary  legacies  given  by  this 
will  shall  be  paid  two  years  after  the  proving  of  the 
same  with  interest  upon  said  legacies  at  the  rate  of 
five  per  cent  per  annum. 

I  direct  that  the  pecuniary  legacies  herein  given 
shall  be  paid  in  the  discretion  of  my  executor  at  any 
time  within  three  years  after  my  decease  but  that 
no  interest  shall  be  paid  thereon. 

I  direct  that  whenever  the  pecuniary  legacies 
herein  given  are  paid  by  my  executor  conformably 
to  law,  no  interest  shall  be  paid  thereon. 

I  direct  that  whenever  the  pecuniary  legacies 
herein  given  are  paid  by  my  executor  conformably 
to  law,  interest  shall  be  paid  thereon  at  the  rate  of 
five  per  cent  per  annum  from  the  day  of  my  decease. 

I  give  A.  B.  a  legacy  of  one  thousand  dollars  to 
be  paid  to  him  two  years  after  my  decease  without 
any  interest  thereon. 

*    ) 

I  give  A.  B.  a  legacy  of  one  thousand  dollars  to 
be  paid  to  him  two  years  after  my  decease  with  in- 
terest thereon  at  the  rate  of  five  per  cent  per  annum. 


CHAPTER  XIV 

LAPSED  DEVISES  — RESIDUARY  CLAUSE— 
REVOCATION 

"AT  common  law,  a  legacy  or  a  devise  lapsed  and 
became  void,  where  a  legatee  or  devisee  failed  to 
survive  the  testator."  Matter  of  Wells,  113  N.  Y. 
396.  So,  if  "there  was  no  one  in  being,  at  the  time 
the  will  was  executed,  to  take  it,  and  there  is  no  pro- 
vision indicating  a  purpose  to  give  it  to  the  surviving 
husband  or  children  of  the  supposed  legatee,  or  any 
other  person."  Twitty  v.  Martin,  90  N.  C.  643,  646. 
"The  rule  as  to  lapsing  of  legacies  applies  as  well  to 
residuary  legatees  as  to  others."  Shelton  v.  Had- 
lock,  62  Conn.  140,  142.  "The  general  rule,  pre- 
vailing in  equity  as  at  law,  that  if  a  legatee  dies 
after  the  making  of  the  will  and  before  the  death  of 
the  testator,  the  legacy  lapses,  is  not  affected  by 
the  insertion,  after  the  name  of  the  legatee,  of  the 
words  'his  heirs,  executors,  administrators  and 
assigns/  unless  a  declaration  that  the  legacy  shall 
not  lapse  is  superadded;  for  those  words,  according 
to  their  uniform  and  well  established  interpreta- 
tion, only  express  the  intention  of  the  testator  to 
pass  the  absolute  property  in  the  estate,  real  or  per- 
sonal, to  the  legatee;  'heirs,  executors  and  adminis- 
trators,' taking  by  representation  only,  cannot  be 

293 


294  TESTAMENTARY   FORMS 

entitled  to  anything  to  which  the  person  whom  they 
represent  never  had  any  title;  and  when  the  word 
'assigns'  is  also  used,  any  other  construction  would 
make  the  bequest  inconsistent  and  uncertain,  in- 
asmuch as  'assigns'  could  only  be  those  to  whom 
the  legatee  had  conveyed  in  his  lifetime,  while 
'heirs,  executors  and  administrators '  could  only 
take  by  succession  by  reason  of  his  death.  Sibley 
v.  Cook,  3  Atk.  572;  Maybank  v.  Brooks,  1  Bro.  Ch. 
84;  Gittings  v.  McDermott,  2  Myl.  &  K.  69;  Shuttle- 
worth  v.  Greaves,  4  Myl.  &  Cr.  35;  In  re  Porter's 
Trust,  4  Kay  &  Johns.  188;  Ballard  v.  Ballard,  18 
Pick.  41;  Dickinson  v.  Purvis,  8  S.  &  R.  71;  Wright 
v.  Trustees  of  Methodist  Episcopal  Church,  Hoffm. 
Ch.  202;  Davis  v.  Taul,  6  Dana,  51. 

"In  the  cases  of  Gittings  v.  McDermott,  Porter's 
Trust,  and  Wright  v.  Trustees  of  Methodist  Epis- 
copal Church,  the  legacy  was  sustained  solely  be- 
cause it  was  in  the  disjunctive  to  the  legatee  named 
'or  his  heirs';  and  in  Davis  v.  Taul,  because  the 
original  legacy  to  him  'and  his  heirs'  had  been  re- 
affirmed by  a  codicil  made  after  his  death,  and 
showing  upon  its  face  that  his  death  was  known  to 
the  testator."  Kimball  v.  Story,  108  Mass.  382, 
384.  A  gift  to  a  corporation  will  lapse  by  its  dis- 
solution before  the  death  of  the  testator.  Merrill 
v.  Hay  den,  86  Me.  133.  An  advancement  on  ac- 
count of  a  legacy  made  in  the  legatee's  lifetime  will 
not  prevent  a  lapse.  Appeal  of  Trustees,  97  Pa.  St. 
187,  201.  As  to  a  legacy  being  a  gift  to  the  debtor 
of  what  he  owed  the  testator,  see  94  Am.  Dec.  158. 


LAPSED   DEVISES  295 

There  are  several  exceptions  to  the  above  rule, 
and  hence  no  lapse  occurs. 

Where  there  is  a  devise  or  bequest  to  a  plurality 
of  persons  as  joint  tenants,  in  order  that  there  may 
be  a  lapse,  all  the  objects  must  die  in  the  testator's 
lifetime,  otherwise  any  one  or  more  of  those  existing 
when  the  will  takes  effect  will  be  entitled  to  the  en- 
tire property.  1  Jarman  on  Wills  (6th  Am.  ed.),  310. 
But  otherwise  where  the  gift  is  to  them  as  tenants 
in  common.  Lombard  v.  Boyden,  5  Allen,  249,  251, 
253.  If,  of  course,  the  gift  is  to  tenants  in  common 
with  the  words  "or  to  the  survivors  of  them,"  there 
is  no  lapse. 

Where  "the  devise  or  bequest  embraces  a  fluc- 
tuating class  of  persons,  who,  by  the  rules  of  con- 
struction, are  to  be  ascertained  at  the  death  of  the 
testator,  or  at  a  subsequent  period,  the  decease  of 
any  of  such  persons  during  the  testator's  life  will 
occasion  no  lapse  or  hiatus  in  the  disposition,  even 
though  the  devisees  or  legatees  are  made  tenants  in 
common,  since  members  of  the  class  antecedently 
dying  are  not  actual  objects  of  gift."  1  Jarman  on 
Wills,  311.  "Speaking  generally,  when  a  testamen- 
tary gift  is  made  to  a  class  of  persons  to  take  effect 
in  possession  immediately,  those  who  constitute  the 
class  at  the  death  of  the  testator,  when  the  will 
becomes  operative,  take  unless  a  different  intent 
appears  from  the  will,  or  from  such  extrinsic  cir- 
cumstances as  may  be  properly  taken  into  account. 
Worcester  v.  Worcester,  101  Mass.  128,  132;  Mer- 
riam  v.  Simonds,  121  Mass.  198,  202;  Campbell  v. 


296  TESTAMENTARY   FORMS 

Rawdon,  18  N.  Y.  412;  Baldwin  v.  Rogers,  3  DeG., 
M.  &  G.  649;  2  Redf.  on  Wills  (4th  ed.),  §  44,  par. 
2."  Howland  v.  Slade,  155  Mass.  415,  416.  There 
seems  to  be  an  exception  to  this  rule.  "The  au- 
thorities on  this  subject  conclusively  show  that  it 
is  an  established  general  rule  of  law,  that  when  the 
parties  to  whom  a  legacy  is  given  are  not  described 
as  a  class,  but  by  their  individual  names  —  though 
they  may  constitute  a  class  —  the  death  of  any  one 
of  them,  before  the  testator,  causes  a  lapse  of  the 
legacy  intended  for  the  legatee  so  dying.  Smith  on 
Real  and  Personal  Property,  810,  811."  Workman 
v.  Workman,  2  Allen,  472,  473. 

If  the  will  provides  for  the  substitution  of  one 
legatee  for  another,  there  will  be  no  lapse.  There 
are  numerous  statutory  provisions  designed  to  pre- 
vent lapse  generally  in  the  case  of  children,  other 
descendants,  and  even  other  relatives.  "In  Iowa 
and  Maryland  the  statutes  entirely  abolish  lapse 
by  death  of  the  legatee,  giving  the  property  to  his 
heirs  or  distributees.  In  several  other  States  such 
lapse  is  abolished  in  all  cases  if  the  devisee  or  legatee 
left  issue  surviving  the  testator,  the  issue  taking  as 
the  ancestor  would  have  done  had  he  survived.  In 
the  rest  of  the  States,  being  all  but  nine,  all  gifts 
lapse  on  the  death  of  the  devisee  or  legatee  before 
the  death  of  the  testator,  as  they  would  at  common 
law,  unless  he  was  a  relative  of  the  testator,  and 
left  issue  surviving.  In  a  number  of  these  States 
the  statutes  provide  against  lapse  only  as  to  gifts 
to  testator's  children,  grandchildren,  brothers  and 


LAPSED   DEVISES  297 

sisters,  or  only  gifts  to  his  children  or  descendants; 
in  Colorado  and  Illinois  only  gifts  to  children  and 
grandchildren,  and  in  South  Carolina  only  gifts  to 
children."  Rood  on  Wills,  §  673.  For  the  preven- 
tion of  lapse  by  the  residuary  clause,  see  p.  299. 

A  common  way  of  preventing  a  lapse  is  by  gift 
over.  "The  rule  does  not  extend  to  a  legacy  given 
over,  after  the  death  of  the  first  legatee;  for  in  such 
case  the  legatee  in  remainder  is  entitled  to  have  it 
immediately.  Such  a  limitation  in  remainder  of  a 
legacy,  or  of  personal  property,  is  clearly  valid  ac- 
cording to  all  the  authorities.  Toller  on  Executors 
(4th  ed.),  333,  334,  394;  2  Pick.  472."  Prescott  v. 
Prescott,  7  Met.  141,  145.  So  also  of  legacies  given 
over  for  any  other  cause  specified  by  the  testator. 
In  gifts  over  great  care  should  be  taken  in  using  the 
words  "and"  or  "or."  See  Rood  on  Wills,  §  682; 
1  Underhill  on  Wills,  §  333. 

Testators  often  express  their  intention  as  in  the 
following  forms: 

Lapsed  Legacies. 

I  give  my  son,  A.  B.,  a  legacy  of  Twenty  Thou- 
sand Dollars  and  I  declare  and  direct  that  if  my 
said  son  shall  die  before  me  leaving  issue  or  de- 
scendants surviving  him,  such  issue  or  descendants 
shall  not  be  entitled  to  said  legacy  or  to  any  part 
thereof  but  the  same  shall  be  and  is  revoked  and 
shall  fall  into  and  form  a  part  of  my  residuary  estate. 

If  any  legatee  named  in  this  will,  whether  a  rela- 
tive of  mine  or  not,  shall  die  before  me  leaving  issue, 


298  TESTAMENTARY   FORMS 

him  or  her  surviving,  the  legacy  to  such  deceased 
parent  shall  go  and  be  paid  to  such  issue  in  equal 
portions;  and  if  he  or  she  shall  leave  no  issue  him 
or  her  surviving,  such  legacy  shall  sink  into  my 
residuary  estate. 

If  any  legatee  under  this  will  shall  die  before  me 
the  legacy  shall  fall  into  and  become  a  part  of  my 
residuary  estate. 

If  any  legatee  under  this  will  shall  die  before  me 
the  legacy  to  him  shall  not  lapse  but  shall  be  paid  to 
his  administrator  or  executor  as  the  case  may  be. 

If  any  legacy  given  herein  shall  for  any  reason 
become  void,  I  declare  that  the  same  shall  fall  into 
and  become  a  part  of  my  residuary  estate. 

The  following  is  taken  from  an  actual  will : 

Thirteenth.  In  the  event  of  the  lapse  of  the  be- 
quest of  the  residuum  of  my  estate  as  contained  in 
subdivision  " Twelfth"  hereof,  or  in  the  event  that 
said  bequest  should  be  by  final  judgment  or  decree 
of  any  court  of  competent  jurisdiction  held  to  be 
illegal  or  void,  then  and  in  that  event  I  direct  my 
said  executors  to  pay  over  and  deliver  to  the  State 
of  Colorado  all  of  that  portion  of  my  estate  in- 
cluded in  the  bequest  of  the  residue  and  remainder 
thereof,  which  shall  so  lapse  or  be  held  to  be  illegal 
or  void,  to  be  appropriated  and  applied  in  such 
manner  as  the  legislature  of  said  State  shall  direct 


RESIDUARY   CLAUSE  299 

to  the  support  of  such  charitable  and  benevolent 
institutions  as  are  now  supported  at  the  expense  of 
the  State  of  Colorado. 

Residuary  Clause. 

Too  much  cannot  be  said  as  to  the  advisability 
of  using  clear  and  apt  language,  if  it  is  the  testator's 
intention  to  devise  and  bequeath  his  entire  prop- 
erty, both  real  and  personal,  by  the  residuary 
clause.  Dole  v.  Johnson,  3  Allen,  364;  Browne  v. 
Cogswell,  5  Allen,  556.  In  nearly  all  jurisdictions 
a  general  residuary  clause  passes  all  void  legacies 
and  devises,  all  lapsed  legacies  and  devises,  "all 
that  is  not  disposed  of  to  others,  including  in  this 
last  class  what  is  not  legally  disposed  of  so  as  to 
pass  to  the  person  intended  as  the  object  of  the 
testator's  bounty";  unless,  of  course,  there  is  a 
different  intention  expressed  in  other  parts  of  the 
will.  Thayer  v.  Wellington,  9  Allen,  283,  295. 
Where  the  testator  and  his  wife  died  at  the  same 
tune  in  the  wreck  of  a  vessel,  it  was  held  that 
a  legacy  to  her  passed  by  the  residuary  clause. 
Batchelder,  Petr.,  147  Mass.  465.  If  there  is  noth- 
ing in  a  will  to  show  an  intention  that  anything 
should  be  paid  to  a  legatee  except  the  income  of  a 
fund  for  life,  the  fund  upon  his  death  falls  into  the 
residue.  In  re  Morgan,  [1893]  3  Ch.  322;  Wynn  v. 
Bartlett,  167  Mass.  292.  Unless  a  residuary  bequest 
is  circumscribed  by  clear  expressions  and  the  title  of 
the  residuary  legatee  narrowed  by  words  of  unmis- 
takable import,  it  will,  to  prevent  intestacy,  be  con- 


300  TESTAMENTARY   FORMS 

strued  so  as  to  perform  the  office  intended,  i.  e.,  to 
dispose  of  all  the  residuary  estate.  Matter  of  Miner, 
146  N.  Y.  121. 

Where  a  testator  by  erasure  revoked  certain 
clauses  in  his  will  only,  it  was  held  that  the  property 
thereby  covered  passed  under  a  general  residuary 
clause.  Bigelow  v.  Gillott,  123  Mass.  102. 

The  residuary  clause  passes  the  reversion  ex- 
pectant upon  the  determination  of  an  estate  tail. 
Steel  v.  Cook,  1  Met.  281.  Also  the  right  or  possi- 
bility of  reverter,  which,  in  the  case  of  a  gift  on  a 
valid  condition,  remains  in  the  devisor.  Hayden  v. 
Stoughton,  5  Pick.  528;  Brattle  Square  Church  v. 
Grant,  3  Gray,  142,  159.  Also  the  reversion  of  the 
land  assigned  to  a  widow  in  dower,  in  a  case  where 
the  residue  of  all  the  testator's  estate  was  devised 
after  the  widow  shall  have  taken  her  thirds,  there 
being  no  direct  provision  for  her  in  the  will.  Yeo- 
mans  v.  Stevens,  2  Allen,  349.  As  to  a  residuary 
clause  operating  as  an  execution  of  a  power  of  ap- 
pointment, see  p.  68. 

In  determining  who  shall  have  the  residuum  of 
an  estate,  it  should  be  borne  in  mind  that  in  most 
jurisdictions  the  general  funds  of  the  estate  are  first 
to  be  called  upon  to  pay  debts,  legacies,  and  charges 
of  administration;  and,  if  personal  estate  is  insuffi- 
cient for  that  purpose,  the  real  estate  is  to  be  sold 
by  the  executor.  See,  however,  p.  276. 

Property  often  increases  or  decreases  in  value  be- 
tween the  time  of  making  the  will  and  the  testator's 
death,  and  a  person  should  not  be  named  as  a  re- 


RESIDUARY   CLAUSE  301 

siduary  legatee,  unless  it  is  the  testator's  intention 
that  that  person  shall  receive  the  benefit  of  such 
increase,  or  bear  the  loss  in  case  of  decrease.  For 
a  case  where  there  was  a  fourfold  increase  in  the 
value  of  the  property  between  the  date  of  the  will 
and  the  testator's  death,  see  Warner  v.  Beach,  4 
Gray,  162. 

If  there  are  more  residuary  legatees  than  one,  the 
testator's  intention  as  to  whether  they  shall  take 
as  joint  tenants  or  tenants  in  common  should  be 
expressed;  for,  if  they  are  tenants  in  common,  as 
already  seen  (p.  295),  the  share  of  one  who  dies 
before  the  testator  does  not  go  to  the  survivors,  but, 
if  there  is  no  gift  over,  is  to  be  disposed  of  as  undevised 
estate.  See  Barber  v.  Barber,  3  Myl.  &  Cr.  688; 
Lombard  v.  Boyden,  5  Allen,  249. 

If  a  testator  by  codicil  revokes  a  bequest  to  one  of 
several  residuary  legatees  named  in  the  will,  he 
should,  to  avoid  embarrassment,  state  in  the  codicil 
his  intention  as  to  the  disposal  of  the  legacy  so 
revoked.  See  Towne  v.  Weston,  132  Mass.  513. 

"We  are  of  opinion  that  the  provision  in  the  third 
article  of  the  will,  that  on  the  decease  of  any  one 
of  his  surviving  daughters  leaving  at  the  time  of  her 
death  no  lawful  issue  then  living,  the  one  hundred 
thousand  dollars  held  in  trust  for  her  shall  be  'paid 
over  to  my  heirs-at-law  as  part  of  the  residue  of  my 
estate,  in  the  manner  hereinafter  directed  concerning 
the  same,'  means  that  such  share  shall  be  paid  in  to 
the  residue  to  be  distributed  among  the  testator's 
heirs-at-law  as  a  part  of  the  residue;  and  that  the 


302  TESTAMENTARY   FORMS 

same  construction  should  be  given  to  the  last  clause 
of  the  fourth  article  of  the  will,  whereby  on  the  de- 
cease of  each  of  his  sons  leaving  no  issue  then  living 
(the  provision  concerning  the  son's  widow  having 
become  operative),  the  trust  fund  of  one  hundred 
thousand  dollars  held  for  each  son  is  to  be  paid 
over  '  to  my  heirs-at-law,  as  hereinafter  provided. ' ' 
Rotch  v.  Levering,  169  Mass.  190,  198.  The  ne- 
cessity of  clearly  expressing  an  intention  as  to  the 
disposition  of  the  residue  is  shown  in  the  case  of  a 
will  which  involved  large  interests.  It  was  held 
that  on  reaching  majority  the  testator's  son  was 
entitled,  by  way  of  resulting  trust,  to  the  residue. 
Sears  v.  Hardy,  120  Mass.  524,  539. 

It  has  already  been  stated  that  a  life  estate  in  the 
residue  is  not  advisable  without  a  trustee  being 
named.  See  p.  162.  Household  furniture  and  per- 
sonal effects  should  not  be  made  the  subject  of  a 
trust  but  should  be  given  outright.  See  p.  362. 
Questions  relating  to  wasting  investments  fre- 
quently arise  under  the  residuary  clause.  See  p.  415 
et  seq.  As  to  the  advantages  of  giving  an  estate  in 
shares,  see  p.  250. 

Full  and  complete  residuary  forms  may  be  found 
on  pp.  565,  588. 

Testators  sometimes  provide  that  certain  prop- 
erty, generally  real  estate,  be  allotted  to  one  of  several 
residuary  devisees,  as  in  the  following  form: 

I  direct  that  in  the  division  and  distribution  of 
my  residuary  estate  the  dwelling  house  located  on 


KEVOCATION  303 

Webster  Street  and  numbered  21  and  the  lot  of 
land  upon  which  the  same  is  situated,  shall  be  al- 
lotted to  my  son,  A.  B.,  as  a  part  of  his  share  of  the 
residuum  at  a  valuation  of  fourteen  thousand 
dollars;  and  I  authorize  and  direct  my  executors  as 
evidence  of  such  allotment  and  of  title  to  give  a 
quitclaim  deed  thereof  to  said  A.  B.,  two  years 
after  this  will  has  been  proved  in  the  probate 
court. 

Another  form  may  be  found  on  p.  543. 

Revocation. 

A  testator  has,  of  course,  the  right  to  revoke  his 
will,  at  any  time  he  desires;  and  his  will  may  also 
be  revoked  by  operation  of  law. 

The  common  way  of  revocation  by  act  of  the 
testator  is  to  burn,  tear,  cancel,  or  obliterate  the 
will,  or  to  have  some  person  do  so  in  the  testator's 
presence  and  by  his  direction.  If  the  will  is  executed 
in  duplicate,  and  it  is  the  intention  to  revoke  it,  both 
copies  should  be  destroyed,  although  it  has  been  held 
that  the  revocation  of  one  would  be  the  revocation 
of  both.  Grossman  v.  Grossman,  95  N.  Y.  145.  The 
destruction  of  a  codicil  has  been  held  not  to  revoke 
a  will.  Malone  v.  Hobbs,  1  Rob.  (Va.)  346,  381. 
11  Destruction  of  a  will  does  not  revoke  a  codicil  to  it 
in  so  far  as  the  codicil  is  capable  of  standing  alone 
as  an  independent  disposition,  unless  both  were  on 
the  same  paper  or  physically  connected."  Rood  on 
Wills,  §  346.  But  in  some  States  there  are  statutes 


304  TESTAMENTARY   FORMS 

which  declare  that  a  revocation  of  a  will  revokes  all 
the  codicils. 

It  is  generally  said  that  the  act  of  revocation  must 
be  done  with  intent  to  revoke,  so  that  the  presence 
of  witnesses  in  some  cases  may  be  advisable.  In 
some  States  there  are  statutes  as  to  witnessing  the 
act  of  cancellation.  "When  a  will  previously 
executed  cannot  be  found  after  the  death  of  the 
testator,  there  is  a  strong  presumption  that  it  was 
revoked  by  destruction  by  the  testator,  and  this 
presumption  stands  in  the  place  of  positive  proof." 
Collyer  v.  Collyer,  110  N.  Y.  481,  486.  See  Throck- 
morton  v.  Holt,  180  U.  S.  552. 

It  has  been  held  that  the  cancellation  of  a  will 
duly  executed,  containing  a  clause  expressly  revoking 
former  wills,  cannot  revive  a  former  will  which  has 
not  been  destroyed,  in  the  absence  of  evidence  to 
show  that  such  was  the  intention  of  the  testator. 
Pickens  v.  Davis,  134  Mass.  252,  256.  In  Williams 
v.  Williams,  142  Mass.  515,  517,  "there  was  proof 
satisfactory  to  the  mind  of  the  justice  who  heard 
the  case,  that  the  testator,  in  cancelling  his  last  will, 
intended  to  revive  the  former  one  which  he  then  left 
uncancelled,  and  his  conclusion  of  fact  was  well 
warranted  by  the  evidence." 

"The  power  to  revoke  a  will  includes  the  power  to 
revoke  any  part  of  it."  Hence  the  cancellation  by  the 
testator  of  certain  clauses  of  his  will,  by  drawing  lines 
through  them  with  the  intention  of  revoking  them,  is 
a  legal  revocation  of  these  clauses.  Bigelow  v.  Gillott, 
123  Mass.  102,  106;  Wheeler  v.  Bent,  7  Pick.  61. 


REVOCATION  305 

Reference  should  be  made  to  the  doctrine  of 
"dependent  relative  revocation,"  in  which  it  is  held 
that  "the  act  of  cancelling,  etc.,  being  done  with 
reference  to  another  act,  meant  to  be  an  effectual 
disposition,  will  be  a  revocation  or  not,  according  as 
the  relative  act  be  efficacious  or  not."  1  Williams 
on  Executors  (Am.  ed.),  127;  Theobald's  Law  of 
Wills  (7th  ed.),  42  et  seq. 

Thus  it  is  held  that  if  a  will  be  cancelled  for  the 
purpose  of  making  a  new  will,  the  original  will  is  not 
revoked  if  another  will  is  not  made.  In  the  Goods 
of  De  Bode,  5  N.  of  C.  189;  In  the  Goods  of  Eeles, 
2  Sw.  &  T.  600.  So  also  if  the  will,  though  made,  is 
not  effectual.  Dancer  v.  Crabb,  3  P.  &  D.  98. 

Where  a  testator  so  entirely  erased  the  name  of 
a  legatee  that  it  was  no  longer  apparent,  and  sub- 
stituted another  name  for  it,  the  court  received 
evidence  as  to  what  the  original  name  was,  and 
restored  it  to  probate  on  being  satisfied  that  the 
testator  only  revoked  the  first  bequest  on  the  sup- 
position that  he  had  effectually  substituted  a  new 
legatee.  In  the  Goods  of  McCabe,  3  P.  &  D.  94. 

And  it  is  held  that,  under  the  twenty-first  section 
of  the  statute  1  Viet.  c.  26,  the  court  will  not  order 
a  piece  of  paper  pasted  over  a  whole  legacy  to  be 
removed;  but  if  the  amount  of  the  legacy  only  is 
covered,  the  legatee's  name  being  untouched,  the 
court  will  regard  the  doctrine  of  "dependent  relative 
revocation"  as  applicable,  and  will  order  the  removal 
of  the  paper.  In  the  Goods  of  Horsford,  3  P.  &  D. 
211. 


306  TESTAMENTARY   FORMS 

A  revocation  is  often  implied  by  law  by  subse- 
quent changes  in  the  condition  or  circumstances  of 
the  testator. 

"An  entire  revocation  by  implication  of  law  is 
limited  to  a  very  small  number  of  cases.  The  mar- 
riage of  a  feme  sole  is  held  to  be  a  revocation  of  her 
previous  will,  or  at  least  a  suspension.  ...  In  case 
of  a  man,  a  rule  has  been  adopted  from  the  civil  law, 
after  some  struggle,  but  is  now  firmly  established, 
that  marriage  and  the  birth  of  a  child  shall  be  held 
to  be  an  entire  revocation.  .  .  .  But  where  the  facts 
on  which  such  revocation  is  ordinarily  implied  have 
been  contemplated  and  provided  for  in  the  will,  no 
such  presumption  arises,  and  the  will  is  not  revoked." 
Warner  v.  Beach,  4  Gray,  162,  163.  Accordingly, 
it  was  held  in  the  above  case  that  the  revocation  of 
a  will  cannot  be  implied  by  law  from  the  birth  of  a 
child  to  the  testator  contemplated  in  the  will;  the 
death  of  the  testator's  wife  and  of  another  child 
leaving  issue;  the  insanity  of  the  testator  for  forty 
years  from  soon  after  making  the  will  till  his  death, 
and  a  fourfold  increase  in  the  value  of  his  property 
during  that  period. 

The  law  upon  this  subject  of  the  revocation  of 
wills  by  marriage  or  by  marriages  and  the  birth  of 
a  child  differs  in  different  localities  and  there  are 
numerous  statutes  upon  the  subject.  The  attorney 
should  be  familiar  with  the  law  of  the  testator's 
domicile,  and  should  bring  the  same  to  the  attention 
of  the  testator.  In  some  jurisdictions  it  is  provided 
by  statute  that  the  marriage  of  a  person  shall  act  as 


REVOCATION  307 

a  revocation  of  a  will  made  by  him  previous  to  such 
marriage,  unless  it  appears  from  the  will  that  it  was 
made  in  contemplation  of  such  marriage,  and  that  if 
the  will  is  made  in  the  exercise  of  a  power  of  appoint- 
ment and  the  real  and  personal  property  subject  to 
the  appointment  would  not,  without  the  appoint- 
ment, pass  to  the  persons  who  would  have  been  en- 
titled to  it  if  it  had  been  the  estate  and  property  of 
the  testator  making  the  appointment  if  he  had  died 
intestate,  so  much  of  the  will  as  makes  the  appoint- 
ment shall  not  be  revoked  by  the  marriage. 

Of  course,  a  will  may  be  revoked  by  some  other 
writing  signed,  attested,  and  subscribed  in  the  same 
manner  as  a  will.  "If  it  can  be  proved  that  a  later 
will  was  duly  executed,  attested,  and  subscribed, 
and  that  it  contained  a  clause  expressly  revoking 
all  former  wills,  but  evidence  of  the  rest  of  its  con- 
tents cannot  be  obtained,  it  is  nevertheless  a  good 
revocation;  and  it  can  be  made  available  only  by 
allowing  it  to  be  set  up  in  oppositon  to  the  probate 
of  the  earlier  will."  Wallis  v.  Wallis,  114  Mass.  510, 
512. 

A  change  of  domicile  may  invalidate  a  will.  Matter 
of  Cobura,  9  Misc.  (N.  Y.)  437.  This  is  a  matter 
which  it  may  be  well  to  bring  to  the  attention  of  a 
testator.  It  may  be  advisable  to  rewrite  and  re- 
execute  the  will.  As  to  revocation  by  divorce  and 
by  adoption  of  a  child,  see  Remsen  on  Wills,  371. 


CHAPTER  XV 
EXECUTOR 

I.    Who  may  be  Executor. 

IF  no  executor  is  appointed,  there  must  be  an 
administrator  with  the  will  annexed.  A  direction 
"that  the  estate  should  go  immediately  into  the 
hands  of  legatees,  or  of  one  or  more  trustees,  for 
particular  purposes,"  would  be  void.  Newcomb  v. 
Williams,  9  Met.  525,  533,  534. 

It  is  not  uncommon  for  a  testator  to  make  a  will 
for  the  sole  purpose  of  naming  an  executor,  whom  he 
directs  to  distribute  his  estate  as  it  would  have  been 
distributed  had  he  died  intestate.  A  testator  can 
thus  provide,  if  the  law  permits,  that  his  executor 
shall  not  be  required  to  give  bond  or  sureties  upon 
his  bond;  while,  if  he  died  intestate,  his  administrator 
would  in  many  jurisdictions  be  compelled  to  give 
such  sureties.  But  it  should  be  remembered  that 
"a  devise  to  an  heir  of  the  same  estate  in  nature  and 
quality  as  that  to  which  he  would  be  entitled  by 
descent"  is  void,  as  the  heir  takes  by  descent  and 
not  by  purchase.  See  p.  117  . 

There  are  statutes  in  many  States  as  to  the  lia- 
bility of  an  executor  in  his  own  wrong,  and  that  he 
shall  not  be  allowed  to  retain  or  deduct  any  part  of 

308 


EXECUTOR  309 

the  personal  estate  taken  by  him  except  for  funeral 
expenses  or  debts  of  the  deceased,  or  other  charges 
actually  paid  by  him  and  which  the  rightful  exec- 
utor or  administrator  might  have  been  compelled 
to  pay.  However,  after  the  death  of  a  testator, 
it  frequently  happens  that  goods  must  be  stored, 
animals  fed  and  cared  for,  and  perishable  property 
disposed  of.  As  in  many  jurisdictions  the  widow 
or  next  of  kin,  or  both,  are  entitled  to  the  administra- 
tion, the  widow  may  well  take  charge  of  the  property, 
and  her  agent  acting  hi  good  faith  would  probably 
not  be  liable  to  an  administrator  afterwards  ap- 
pointed. See  Perkins  v.  Ladd,  114  Mass.  420,  422. 

A  will  which  merely  appoints  an  executor  is  valid; 
and  this  is  so,  even  though  the  executor  renounces 
probate.  Sumner  v.  Crane,  155  Mass.  483,  484. 
Cases  where  partial  probate  of  a  will  has  been 
allowed  "are  cases  where  there  has  been  either  a 
partial  legal  incapacity  on  the  part  of  the  testator, 
or  where  there  has  been  fraud  or  undue  influence 
as  to  a  specific  clause  in  a  will."  Same  case,  p.  484. 

"A  testator  may  appoint  several  persons  as  execu- 
tors in  several  degrees;  as  where  he  makes  his  wife 
executrix;  but  if  she  will  not  or  cannot  be  executrix, 
then  he  makes  his  son  executor;  and  if  his  son 
cannot  or  will  not  be  executor,  then  he  makes  his 
brother;  and  so  on."  1  Williams  on  Executors  (Am. 
ed.),  196. 

The  appointment  of  an  executor  may  be  qualified 
by  limitations  as  in  point  of  time,  in  point  of  place, 
and  as  to  the  subject-matter;  and  the  appointment 


310  TESTAMENTARY   FORMS 

may  be  conditional.  1  Williams  on  Executors  (Am. 
ed.),  199;  Despard  v.  Churchill,  53  N.  Y.  192. 

It  has  been  held  that  a  testator  may,  by  his  will, 
delegate  the  power  of  naming  an  executor  to  another. 
Hartnett  v.  Wandell,  60  N.  Y.  346.  But  such  power 
in  some  States  is  declared  void  by  statute. 

A  testator  having  appointed  three  persons  by 
name,  the  survivors  and  survivor  of  them,  his  exec- 
utors, and  having  given  the  residue  to  them  to  pay 
the  income  to  his  sons  for  life,  and  after  their  de- 
cease the  principal  to  then*  heirs,  one  executor  hav- 
ing declined,  the  other  two  may  execute  the  trusts. 
Treadwell  v.  Cordis,  5  Gray,  341,  359. 

The  following  may  be  executors: 

A  minor.  This  is  so  in  most  jurisdictions;  and 
it  is  frequently  provided  by  statute  that,  if  there  are 
other  executors  of  age,  they  may  act  till  the  minor 
reaches  his  majority.  If  he  is  the  only  executor, 
administration  with  the  will  annexed  would  prob- 
ably be  granted  during  his  minority. 

A  single  woman.  This  is  so  in  most  States,  but 
in  the  event  of  her  marriage  her  sureties  would 
probably  be  entitled  to  be  released  from  any  further 
liability  on  her  bond. 

A  married  woman.  In  most  States  she  may  bind 
herself  and  the  estate  which  she  represents  without 
any  act  or  assent  on  the  part  of  her  husband. 

Aliens  and  non-residents.  "An  alien  may  be  an 
executor  at  common  law.  In  some  of  the  States  of 
the  Union,  aliens  are  disqualified  by  statute  from 
acting  as  executors,  but  the  term  'alien'  does  not 


EXECUTOR  311 

include  a  resident  of  another  State,  if  he  is  a  citizen 
of  the  United  States,  and,  as  a  general  rule,  non- 
residence  in  the  State  where  the  will  is  admitted  to 
probate  is  not  a  disqualification  of  the  person  named 
therein  as  executor,  if  he  is  a  citizen  of  the  United 
States."  11  Am.  &  Eng.  Encyc.  of  Law  (2d  ed.),  753. 
In  most  States  a  non-resident  would  probably  not  be 
allowed  to  enter  upon  the  duties  of  his  trust  until 
he  had  appointed  an  agent  residing  hi  the  State 
upon  whom  papers  could  be  served.  The  same  rule 
would  probably  apply  if  the  executor  removes  from 
the  State;  and  if  the  agent  should  die  or  remove 
from  the  State,  another  appointment  would  have 
to  be  made. 

Unnamed  executors.  It  is  not  uncommon  for  a 
testator  to  appoint  an  executor  without  naming  him, 
as  hi  forms  given  below. 

A  creditor  of  the  testator.  "The  fact  that  an  ad- 
ministrator or  an  executor  is  a  creditor  of  the  estate 
which  he  represents  does  not  prevent  him  from 
recovering  the  amount  of  his  claim.  The  proper 
method  for  him  to  pursue  in  such  a  case  is  to  credit 
himself  with  the  amount  hi  his  account."  Buckley  v. 
Buckley,  157  Mass.  536,  537. 

A  debtor  of  the  testator.  "It  is  not  now  necessary 
to  consider  the  old  rule,  that  a  testator,  by  making 
a  debtor  his  executor,  released  his  debt.  That  rule 
has  been  qualified,  to  a  great  extent,  hi  England, 
and  has  never  been  hi  force  here.  It  is  now  under- 
stood, that  when  an  executor  or  administrator  was 
indebted  to  his  testator  or  intestate,  at  the  tune  of 


312  TESTAMENTARY   FORMS 

his  decease,  although  the  right  of  action  cannot 
exist,  because  a  man  cannot  sue  himself,  yet  the 
debt  is  not  considered  as  extinguished  in  any  way, 
but  rather  to  be  accounted  for  as  paid.  In  other 
words,  the  debt  becomes,  prima  facie,  assets  hi  the 
hands  of  the  administrator  or  executor,  to  be  ac- 
counted for  and  adjusted  hi  probate  account,  as 
assets  actually  realized.  Wankford  v:  Wankford, 
1  Salk.  299;  Cheetham  v.  Ward,  1  Bos.  &  Pul.  630; 
Freakley  v.  Fox,  9  Barn.  &  Cres.  130."  Ipswich  Co. 
v.  Story,  5  Met.  310,  313. 

A  partner  of  the  testator.  "It  appears  that  the 
testator,  Joseph  Forward,  and  the  executor,  Joseph 
M.  Forward,  were  partners  at  the  time  of  the  decease 
of  the  testator,  and  had  been  such  for  many  years, 
and  their  copartnership  concerns  had  never  been 
settled.  After  the  appointment  of  the  executors, 
they  undertook  to  examine  the  accounts,  and  to  make 
a  settlement  of  the  partnership  affairs.  It  is  con- 
tended that  this  settlement  is  conclusive  upon  the 
legatees.  But  the  court  are  of  the  opinion  that  the 
settlement  was  not  binding  upon  the  legatees.  The 
decease  of  one  partner  dissolves  the  partnership,  and 
its  debts  become  the  sole  debts  of  the  surviving 
partner.  He  should  pay  them,  and  settle  his  account 
in  the  Probate  Court.  When  such  account  is  ren- 
dered, all  parties  interested  will  have  an  opportunity 
to  be  heard  in  respect  to  it.  The  fact  that  there  is  a 
co-executor  makes  no  difference,  for  if  a  balance  is 
found  due  to  the  estate  of  the  testator,  it  must  still 
be  settled  in  the  Probate  Court,  because  the  co- 


EXECUTOR  313 

executor  cannot  maintain  an  action  to  recover  the 
balance."  Forward  v.  Forward,  6  Allen,  494,  496. 
"As  a  general  rule,  where  a  surviving  partner  con- 
tinues to  use  the  capital  of  a  deceased  partner  in 
the  business,  the  representatives  of  the  latter,  in  the 
absence  of  any  agreement  to  the  contrary,  have  the 
election  to  demand  either  interest  on  the  capital 
used  or  the  profits  earned  by  its  use,  the  latter  being 
accretions  to  the  fund  owned  by  them.  There  is, 
however,  no  inflexible  rule  governing  all  cases,  but 
each  case  depends  upon  its  own  circumstances  and 
equities."  Robinson  v.  Simmons,  146  Mass.  167, 
175. 

A  trust  company  or  other  corporation.  This  is  a 
statutory  matter,  and  in  most  States  such  companies 
and  corporations  have  liberal  statutory  powers  as 
to  acting  as  executors. 

In  fine,  it  is  a  general  rule  that  any  one  capable  of 
making  a  will  may  be  an  executor;  but  it  is  sug- 
gested that  it  is  well  for  a  testator  to  consult  with 
the  person  or  persons  he  desires  to  name  as  executor 
or  executors  to  see  if  they  are  willing  to  accept. 
Statutes  often  provide  that  the  executor  of  an  ex- 
ecutor shall  not,  as  such,  administer  on  the  estate  of 
the  first  testator,  and  that  if  one  of  several  execu- 
tors does  not  accept,  letters  may  be  granted  to  the 
others. 

As  to  the  appointment  of  executors,  including 
minors  and  unnamed  individuals,  the  following  are 
offered  as  forms: 


314  TESTAMENTARY   FORMS 

Appointment  of  Executors. 

I  constitute  and  appoint  A.  B.  and  C.  D.,  or  the 
survivor  of  them  the  executors  of  this  will,  and  I 
release  them  from  giving  a  surety  or  sureties  upon 
their  official  bonds. 

I  nominate  and  appoint  my  said  wife  A.  B.  and 
my  friend  C.  D.  the  executrix  and  executor  of  this 
my  last  will  and  testament,  and  I  exempt  them  from 
giving  any  security  to  the  court  such  as  official  bonds 
or,  if  bonds  be  required  by  law,  then  I  release  them 
from  giving  a  surety  or  sureties  thereon. 

I  appoint  my  sons,  A.  B.,  and  C.  D.,  the  executors 
of  this  will  and  trust  that  they  will  consult  with  their 
mother  on  all  important  matters  relating  to  the  settle- 
ment of  my  estate.  In  case  either  of  my  executors 
dies  or  resigns,  the  surviving  executor  may  name  some 
suitable  person  to  fill  the  vacancy,  who,  upon  proper 
appointment  by  the  Probate  Court  shall  be  clothed 
with  all  the  powers  of  an  executor  originally  ap- 
pointed herein.  I  release  my  executors  and  adminis- 
trators with  the  will  annexed  from  giving  a  surety 
or  sureties  upon  their  official  bonds. 

I  nominate  and  appoint  the  mayor  of  the  city  of 
for  the  time  being,  at  the  time  of  my  decease, 


and  the  President  of  the  Board  of  Trade  of  the  city 

of ,  for  the  time  being,  at  the  time  of  my  decease, 

to  be  the  executors  of  this  will,  and  I  release  them 


EXECUTOR  315 

from  giving  bonds  or,  if  personal  bonds  are  required, 
then  I  release  them  from  giving  sureties  thereon. 

I  nominate  and  appoint  my  wife  A.  B.  and  my 
friends  C.  D.  and  E.  F.  the  executrix  and  executors 
of  this  will;  and,  if  any  of  them  dies,  resigns  or  is 
incapable  of  acting  from  any  cause,  then  I  nominate 
and  appoint  G.  H.  hi  his  or  her  place.  I  declare  that 
none  of  those  named  above  as  executors  shall  be 
required  to  give  an  official  bond. 

I  nominate  and  appoint  my  wife  A.  B.  executrix 
and  my  minor  sons  C.  D.  and  E.  F.  the  executors 
of  this  will,  as  soon  as  said  sons  shall  respectively 
reach  majority;  and  I  release  all  said  executors 
from  giving  a  surety  or  sureties  upon  their  official 
bonds. 

I  nominate  and  appoint  my  son  A.  B.  and  my 
grandson  C.  D.  the  executors  of  this  will,  and,  if  at 
the  tune  of  my  decease,  the  said  C.  D.  is  under 
twenty-one  years  of  age,  the  said  A.  B.  is  to  act  as 
sole  executor  until  C.  D.  reaches  majority,  when  the 
said  C.  D.  is  to  qualify  and  act  as  co-executor  with 
the  said  A.  B. 

I  nominate  A.  B.  as  the  executor  of  this  will  and 
release  him  from  giving  bonds;  and  if  this  will  is 
proved  in  other  jurisdictions,  I  direct,  if  I  am 
capable  of  so  doing,  that  he  be  released  from  giving 
bonds  in  such  jurisdictions. 


316  TESTAMENTARY   FORMS 

I  nominate  and  appoint  the  Equity  Trust  Com- 
pany of  Boston,  as  the  executor  of  this  will. 

I  nominate  and  appoint  the  Equity  Trust  Com- 
pany of  New  York  and  A.  B.,  also  of  that  city,  the 
executors  of  this  will;  and  I  release  the  said  A.  B. 
from  giving  a  surety  or  sureties  upon  his  official 
bond. 

I  appoint  my  wife  A.  B.  the  executrix  of  this  will 
and  release  her  from  giving  a  surety  or  sureties  upon 
her  official  bond;  and,  if  at  any  time  she  feels  that 
she  requires  the  assistance  of  a  co-executor,  then  I 
authorize  the  Judge  of  Probate  to  appoint  as  exec- 
utor with  her  any  suitable  person  whom  she  may 
select. 

I  name  A.  B.  the  executor  of  this  will,  and  direct 
that  any  corporation  authorized  by  law  shall  be  the 
surety  upon  his  bond  and  that  the  expense  thereof 
shall  be  paid  by  my  estate. 

I  direct  that  the  executors  of  and  trustees  under 
this  will  may  give  bonds  with  any  surety  company 
of  recognized  stability  as  surety  and  that  the  ex- 
pense thereof  shall  be  charged  to  the  general  funds 
of  my  estate  or  to  the  income  of  the  trust  estate  as 
the  case  may  be. 

I  constitute  and  appoint  my  oldest  son  at  the 
time  of  my  decease  the  executor  of  this  will. 


EXECUTOR  317 

I  name  and  appoint  as  executor  of  this  will  the 
individual  who  shall  be  at  the  time  of  my  decease  the 
president  of  the  Traders'  National  Bank  of,  etc. 

I  constitute  and  appoint  my  wife  A.  B.  the  ex- 
ecutrix, and  my  son  C.  D.  the  executor  of  this  will, 
and  I  also  name  as  executor  of  this  will  any  other 
son  of  mine  who  shall  arrive  at  the  age  of  twenty- 
five  years  before  my  decease  and  also  any  other  son 
of  mine  who  shall  arrive  at  the  age  of  twenty-five 
years  after  my  decease.  I  release  all  executors  under 
this  will  from  giving  a  surety  or  sureties  upon  their 
official  bonds.  I  direct  that,  if  my  wife  marries 
again,  she  shall  cease  to  be  an  executrix  of  this  will. 

I  constitute  and  appoint  A.  B.  and  C.  D.  the  exec- 
utors of  this  will  and  I  release  them  from  giving 
bonds  in  qualifying  in  the  jurisdiction  of  my  domicile; 
and,  if  it  is  necessary  for  them  to  prove  this  will  in 
any  other  State  or  country,  I  also  release  them  from 
giving  bonds  or  any  security  in  such  State  or  country, 
if  it  is  in  my  power  to  do  so. 

I  constitute  and  appoint  my  wife  A.  B.  the  execu- 
trix, and  my  brother  C.  D.  the  executor  of  this  will; 
and,  if  my  son  E.  F.  reaches  the  age  of  twenty-one 
years  before  my  estate  is  fully  settled,  I  also  con- 
stitute and  appoint  him  an  executor  of  this  will 
with  the  two  executors  above  named.  I  exempt  all 
executors  of  this  will  from  giving  a  surety  or  sureties 
upon  their  official  bonds. 


318  TESTAMENTARY   FORMS 

In  the  case  of  large  estates  provision  is  sometimes 
made  for  the  appointment  of  new  executors  or 
trustees  during  a  long  period.  Such  provisions  are 
not  generally  advisable,  as  deaths,  resignations,  etc., 
are  uncertain,  and  unforeseen  events  are  likely  to 
occur.  The  will  of  a  wealthy  man  which  was  proved 
a  few  years  ago  contained  an  elaborate  provision 
of  nearly  a  thousand  words.  In  most  cases  the 
selection  may  be  left  to  the  parties  hi  interest,  with 
the  approval  of  the  court. 

The  last  of  the  following  forms  is  taken  from  an 
actual  will: 

New  Executors  and  Trustees. 

I  direct  that  upon  the  death  or  resignation  of  any 
one  of  my  three  executors  or  trustees  or  his  inability 
for  any  reason  to  perform  the  duties  of  the  office, 
the  other  two  shall  appoint  some  suitable  person 
in  writing  signed  by  them,  upon  the  acceptance, 
acknowledgment  and  recording  of  which  writing  in 
the  Registry  of  Deeds,  the  person  so  appointed  shall 
be  invested  with  all  the  powers  and  authority  of  an 
executor  or  trustee  originally  nominated  under  this 
will. 

Whenever  any  one  of  my  three  executors  or 
trustees  dies,  resigns  or  becomes  incapacitated,  I 
direct  that  the  other  two  shall  appoint,  under  their 
hands  and  seals,  another  executor  or  trustee  who 
shall  be  a  suitable  person  for  the  position,  and  that 
thereupon  there  shall  be  vested  in  him  all  power  and 


EXECUTOR  319 

authority  as  if  named  and  appointed  executor  or 
trustee  by  this  will.  I  direct  that  like  the  other 
executors  or  trustees  he  shall  be  exempt  from  giving 
a  surety  or  sureties  upon  his  official  bond.  I  further 
direct  that  the  above  appointment  made  in  writing 
with  the  acceptance  of  the  appointee  indorsed  thereon 
shall  be  duly  filed  or  recorded  as  the  law  may  be  in 
the  proper  surrogate  or  probate  office. 

When  the  number  of  my  executors  or  trustees  is 
reduced  by  the  death,  resignation  or  inability  to  act 
of  any  one  of  them,  the  surviving  executors  or  trus- 
tees shall  appoint  a  successor  by  such  instrument 
as  may  be  legal  and  proper  and  shall  intrust  the 
same  to  the  custody  and  keeping  of  the  proper 
official. 

In  case  of  the  death,  resignation,  refusal  or  inability 
to  act  of  either  of  my  two  executors  or  trustees,  the 
acting  executor  or  trustee  shall  appoint  by  a  written 
instrument  a  proper  person  as  successor  to  the  one 
so  dying,  resigning,  or  unable  to  act  and  he  shall 
qualify  as  co-executor  or  co-trustee  without  giving 
sureties  upon  his  official  bond.  Before  such  appoint- 
ment and  qualification  the  acting  executor  or  trus- 
tee shall  have  all  the  powers  conferred  herein  on  the 
two  original  executors  or  trustees  jointly. 

When  the  number  of  my  executors  or  trustees  is 
reduced  by  the  death,  resignation  or  incapacity  of 
any  one  thereof,  then  I  direct  the  acting  executors 


320  TESTAMENTARY   FORMS 

or  trustees  to  apply  at  once  to  the  proper  tribunal 
to  have  a  successor  appointed  conformably  to  law. 

If  any  of  the  executors  named  by  me  shall  refuse 
to  act,  die,  or  be  for  any  reason  disqualified  or  dis- 
charged, and  the  number  of  executors  be  thereby 
reduced  to  less  than  three,  I  authorize  and  empower 
the  two  willing  to  act,  surviving  or  remaining,  if 
there  be  two,  or  the  one  willing  to  act,  surviving  or 
remaining,  if,  from  any  cause  there  should  be  but 
one  before  vacancies  are  filled,  to  fill  such  vacancy 
or  vacancies  in  the  number  of  three  executors  by 
nominating  and  appointing  a  suitable  person  or 
persons,  said  nomination  and  appointment  to  be 
made  by  an  instrument  of  writing  under  seal,  duly 
acknowledged  and  recorded  and  filed  hi  the  office  of 
the  Register  of  Wills  in  and  for  the  County  of,  etc.; 
and  the  person  or  persons  so  nominated  and  appointed 
shall  thereupon  become  an  executor  or  executors 
with  said  executors  or  executor  willing  to  act, 
surviving  or  remaining,  with  the  same  powers  and 
authorities  thenceforth  as  if  herein  expressly  named 
by  me,  and  the  said  person  or  persons  may  be  quali- 
fied before  said  Register  as  such.  And  as  often  as 
a  vacancy  or  vacancies  shall  occur,  so  as  to  reduce 
the  number  of  executors  to  less  than  three,  such 
vacancy  or  vacancies  shall  in  like  manner  be  filled 
by  the  executors  or  executor  surviving  or  remain- 
ing, and  this  provision  I  intend  shall  apply  whether 
such  executors  shall  be  acting  as  executors  of  this 
my  said  will,  as  trustees,  or  as  testamentary  guar- 


EXECUTOR  321 

dians,   so  long  as  the  necessity  for  them   in  any 
capacity  shall  continue. 

Other  forms  may  be  found  on  pp.  558,  588. 


II.    Special  Directions. 

1.  The  Bond  and  Liability  thereon. 

In  some  States  the  English  rule  obtains  that  an 
executor  is  not  compelled  to  give  bonds  unless  cir- 
cumstances require.  In  a  few  States  a  bond  is 
necessary  in  any  event  to  secure  the  payment  of 
debts.  In  most  jurisdictions,  however,  the  executor 
must  give  bond  with  approved  sureties  unless  re- 
leased by  the  terms  of  the  will;  and  even  then  in 
some  States  the  direction  that  he  shall  not  be  re- 
quired to  give  a  bond  means  exemption  from  sureties, 
as  his  personal  bond  is  still  required.  Probably 
where  the  law  provides  that  the  testator  may  release 
the  executor  from  giving  sureties,  creditors  and  the 
guardians  of  minors  would  have  a  right  to  be  heard 
and  the  court  might  require  a  bond  with  sufficient 
sureties. 

Statutes  are  silent  as  to  whether  the  exemption 
shall  apply  solely  to  the  executor  named  in  the  will. 
The  reasonable  inference  is,  that  it  is  optional  with 
the  testator  to  include  all  executors,  whether  original 
or  substituted.  See  form  on  p.  522.  In  most  States 
surety  and  fidelity  companies  are  authorized  by 
law  to  act  as  sureties,  and  the  expense  is  charged 
against  the  estate;  and  statutes  generally  provide 


322  TESTAMENTARY   FORMS 

that  such  companies  are  released  from  giving  sureties. 
Various  provisions  as  to  releasing  executors  from 
giving  sureties  will  be  found  in  the  forms  just  given 
above. 

In  some  States  statutes  permit  an  executor  who 
is  also  residuary  legatee  to  give  bond  with  condition 
to  pay  all  debts  and  legacies  of  the  testator,  and 
such  amounts  as  may  be  allowed  by  the  court  to  the 
widow  and  minor  children,  and  no  inventory  or 
account  is  required.  The  danger  in  giving  such  bond 
is  that  the  executor  and  residuary  legatee  is  estopped 
to  deny  assets  in  any  action  to  enforce  the  personal 
obligation  assumed  by  him. 

"It  is  said  that  a  bond  to  pay  debts  and  legacies  is 
taken  almost  as  a  matter  of  form,  in  the  probate 
office,  with  very  little  regard  to  the  state  of  the  assets. 
If  it  be  so,  it  is  certainly  a  very  rash  practice,  and 
one  to  be  discountenanced."  Jones  v.  Richardson, 
5  Met.  247,  250.  If  the  executor  "has  the  slightest 
doubt  that  there  is  sufficient  property  to  pay  all 
debts  and  legacies,  he  should  give  bond  in  common 
form."  Colwell  v.  Alger,  5  Gray,  67,  68.  But  now, 
if  such  a  bond  is  given  in  a  State  which  has  an 
inheritance  tax  law,  the  authorities  would  require 
an  inventory  in  order  to  assess  the  tax.  See  p.  287. 

Sometimes  a  testator  directs  his  executor,  when 
not  named  as  residuary  legatee,  not  to  file  an  inven- 
tory or  account.  Such  a  direction  in  most  jurisdic- 
tions would  have  no  legal  effect.  See  Fuller  v. 
Wilbur,  170  Mass.  506,  507.  It  is  to  be  noted  as 
already  stated  that  under  inheritance  tax  laws  an 


EXECUTOR  323 

inventory  is  necessary  in  order  to  determine  the 
amount  of  the  property  subject  to  tax. 

The  following  forms  may  be  of  service;  but,  if  so, 
only  in  a  few  jurisdictions: 

I  direct  that  no  inventory  of  my  estate  shall  be 
filed  in  the  registry  of  probate.  My  executors  will  of 
course  have  an  inventory  taken  for  their  own  benefit 
and  convenience  in  the  management  of  my  estate 
and  the  keeping  of  then-  accounts,  which  inventory 
shall  always  be  open  to  the  examination  of  all 
legatees  and  devisees  under  this  will. 

My  executors  are  released  from  either  making  or 
filing  any  list  or  inventory  of  my  estate. 

I  direct  my  executors  to  return  no  inventory  of  my 
estate  or  render  any  account  thereof  to  the  probate 
court. 

In  most  States  two  or  more  persons  acting  jointly 
as  executors  may  give  either  separate  or  joint  bonds. 
Generally  in  case  of  a  joint  bond,  they  are  liable  to 
the  extent  of  the  assets  included  in  their  inventory 
and  which  have  come  into  their  joint  possession; 
but  in  the  case  of  several  bonds  neither  is  liable  for 
losses  caused  exclusively  by  the  default  of  the  other. 
Perhaps  several  bonds  are  always  advisable  because, 
in  the  event  of  the  resignation  of  one  executor  in 
case  of  a  joint  bond,  a  new  bond  from  the  other 
executor  or  executors  may  be  required.  "A  clause 
making  a  trustee  liable  for  his  wilful  and  intentional 


324  TESTAMENTARY   FORMS 

breaches  of  trust  only  is  a  common  provision  in  trust 
instruments,  and  will  be  given  effect  by  the  courts. 
But  this  clause  does  not  excuse  a  trustee  who  know- 
ingly or  carelessly  hazards  the  trust  funds,  and  fails 
in  his  duty  where  reasonable  inquiry  would  have 
made  him  safe."  Loring's  A  Trustee's  Handbook 
(3d  ed.),  153. 

Where  there  are  two  executors  in  a  will,  each  has 
a  right  to  receive  and  hold  the  funds  of  the  estate. 
Edmonds  v.  Crenshaw,  14  Pet.  166,  168.  And  each 
"is  liable  only  for  his  own  acts,  and  what  he  receives 
and  applies,  unless  he  joins  in  the  direction  and  mis- 
application of  the  assets."  Peter  v.  Beverly,  10  Pet. 
532,  562. 

It  is  customary,  when  a  testator  desires  to  exempt 
an  executor  from  liability  for  the  default  of  his  co- 
executor,  to  provide  that  he  shall  not  be  responsible 
for  losses  occurring  without  his  own  wilful  default. 

The  following  are  forms  frequently  used: 

LIABILITY  OF  EXECUTORS  AND  TRUSTEES. 

I  declare  that  each  executor  and  trustee  of  this 
will  shall  be  liable  for  his  own  fraudulent  acts  or 
misconduct  and  shall  in  no  event  be  responsible  for 
the  fraudulent  wrong-doing  of  his  co-executors  and 
co-trustees  unless  a  party  thereto. 

My  executors  and  trustees  shall  not  be  answerable 
for  any  loss,  waste  or  depreciation  of  my  estate  while 
in  their  possession  and  under  their  control  or  for 
the  fraudulent  acts  of  each  other. 


EXECUTOR  325 

Each  executor  of  and  trustee  under  this  will, 
whether  original  or  substituted,  shall  only  be  liable 
for  tHe  losses  which  occur  by  his  own  fraudulent  acts 
or  neglect  and  not  for  the  acts  of  the  other  executors 
or  trustees  in  which  he  does  not  participate. 

The  executors  of  and  trustees  under  this  will  shall 
be  accountable  only  for  their  own  neglect,  default 
and  misfeasance  and  not  for  errors  of  judgment 
honestly  exercised. 

Other  forms  are  given  on  pp.  573,  588. 

2.  Charges  of  Administration.     Compensation. 

In  the  United  States  executors  are  reimbursed  for 
expenses  and  are  allowed  by  statute  or  decision  of 
court  reasonable  compensation  for  their  services. 
If  it  is  necessary  to  employ  counsel,  their  charges 
are  " reasonable  expenses."  Forward  v.  Forward,  6 
Allen,  494,  497. 

It  is  common  for  testators  to  make  provision  in 
their  wills  as  to  the  compensation  of  executors,  but, 
if  a  legacy  is  given  in  lieu  of  compensation,  the 
intention  should  be  clearly  stated.  See  p.  172. 

The  following  forms  are  believed  to  cover  most 
cases  of  compensation: 

COMPENSATION  OF  EXECUTORS  AND  TRUSTEES. 

In  regard  to  the  compensation  of  my  three  exec- 
utors I  direct  that  A.  B.  shall  transact  the  business 
in  the  settlement  of  my  estate,  and  that  C.  D.  and 


326  TESTAMENTARY   FORMS 

E.  F.  shall  act  as  advisers.    The  compensation  shall 
be  in  proportion  to  the  service  of  each. 

As  my  estate  is  in  such  condition  that  its  settle- 
ment may  impose  exceptional  burdens  and  labor  upon 
my  executors,  I  direct  that  they  shall  receive  liberal 
remuneration. 

• 

I  direct  that  my  executors  shall  receive  fair  com- 
pensation according  to  the  services  they  severally 
render  my  estate. 

I  direct  that  each  of  my  said  executors  shall  be 
allowed  the  sum  of  Five  Thousand  Dollars  in  full 
payment  for  his  services  in  settling  my  estate;  but, 
if  he  fails  to  serve  until  the  estate  is  finally  settled, 
then  he  shall  receive  the  proper  proportion  of  Five 
Thousand  Dollars. 

I  direct  that  the  executors  of  and  trustees  under  this 
will  shall  receive  no  compensation  for  their  services. 

I  direct  that  my  executors  shall  receive  in  full  as 
compensation  for  their  services  (the  same  to  be 
equally  divided  among  them)  two  and  a  half  per 
cent  upon  the  appraised  value  of  personalty  and  all 
realty  sold  by  them  and  five  per  cent  upon  all  income 
collected  by  them  while  the  estate  is  in  their  hands. 

It  is  evident  that  the  settlement  and  management 
of  my  estate  will  largely  devolve  upon  my  friend 
A.  B.,  and  that  my  wife  and  son,  the  two  other 


EXECUTOR  327 

executors,  will  not  be  required  to  assume  burdensome 
responsibilities.  I  request  the  Judge  of  Probate  to 
allow  the  most  liberal  compensation,  and  I  direct 
that  the  said  A.  B.  shall  receive  two  thirds  or  four 
sixths  and  my  said  wife  and  son  each  one  sixth  of 
the  amount  allowed,  and  that  the  same  shall  be  in 
full  for  all  their  services  as  executors. 

Other  forms  may  be  found  on  pp.  559,  563,  579. 

In  some  jurisdictions  a  special  administrator,  if 
the  will  is  contested,  may  be  authorized  to  pay  the 
expenses  incurred  by  the  executor. 

Forms  like  the  following  are  sometimes  used : 

EXPENSES  OF  CONTEST. 

If  any  attempt  shall  be  made  to  contest  this  will 
in  the  Probate  Court  or  hi  any  other  tribunal  and 
shall  prove  unsuccessful,  then  I  order  and  direct 
that  all  the  expenses  incurred  by  my  executors  in 
resisting  such  attempt  and  in  upholding  the  will 
shall  be  paid  out  of  the  general  funds  of  my  estate. 

I  authorize  and  direct  my  executors,  if  any  at- 
tempt is  made  to  contest  or  dispute  the  probate  of 
this  will,  to  resist  the  same  and  pay  all  the  expenses 
incurred  out  of  the  general  funds  of  my  estate;  but 
none  of  the  expenses  of  those  contesting  the  will 
shall  be  so  paid. 

Another  form  may  be  found  on  p.  585. 


328  TESTAMENTARY   FORMS 

3.   Directions  that  a  Majority  of  Executors  may  Act. 

Differences  often  arise  among  executors  and 
trustees,  and  the  absence  or  disability  of  one  or 
more  may  render  action  impossible.  To  obviate 
difficulty  testators  frequently  give  directions  in 
their  wills  as  in  the  following  forms: 

MAJORITY  TO  ACT. 

Differences  among  my  executors  or  trustees  rela- 
tive to  actions  and  proceedings  in  the  administra- 
tion and  settlement  of  my  estate  may  arise.  I 
therefore  order  and  direct  that  the  opinion  of  a 
majority  of  them  on  all  questions  shall  be  decisive 
and  final  and  that  the  acts  of  such  majority  shall  be 
as  binding  and  valid  as  if  all  my  executors  or  trus- 
tees were  parties  thereto  and  had  joined  therein. 

If  any  differences  among  my  executors  or  trustees 
as  to  the  administration  of  my  affairs  and  the  settle- 
ment of  my  estate  arise,  I  confer  upon  the  majority 
of  them  full  power  and  authority  to  act  in  the 
premises,  and  the  decision  and  judgment  of  such 
majority  shall  be  conclusive  and  valid,  the  same  as 
if  all  the  executors  or  trustees  had  joined  therein. 

I  direct  that  a  majority  of  the  executors  or  trustees 
of  this  will  shall,  in  the  event  of  conflict  or  differ- 
ences among  them,  exercise  the  powers  conferred 
herein  upon  all  of  my  executors  or  trustees;  and  this 
authority  extends  to  any  act  or  acts,  necessary  in 
the  administration  of  my  affairs  and  the  settlement 


EXECUTOR  329 

of  my  estate  including  the  execution  of  all  docu- 
ments, papers,  contracts  and  instruments  of  every 
nature  and  description.  All  acts  done,  and  all  docu- 
ments, papers,  contracts  and  instruments  executed, 
by  such  majority  either  in  person  or  by  attorney  in 
fact,  shall  be  as  effectual  and  binding  as  if  done  or 
executed  by  all  of  my  executors  or  trustees. 

In  the  case  of  disagreement  among  my  executors 
or  trustees  upon  any  matter  relative  to  the  manage- 
ment and  settlement  of  my  estate,  the  opinion  of  a 
majority  of  them  shall  prevail  and  shall  be  as  valid 
and  binding  upon  my  estate  as  if  all  my  executors 
or  trustees  had  joined  therein. 

The  decision  of  a  majority  of  my  executors  or 
trustees  shall  be  conclusive  upon  all  matters  coming 
within  the  range  of  their  functions  and  duties;  and 
all  conveyances,  bills  of  sale,  contracts  or  other 
documents  executed  by  a  majority  of  my  executors 
or  trustees  shall  be  as  binding  upon  my  estate  and 
as  absolute  a  protection  to  those  acquiring  rights  of 
property  thereunder  as  if  entered  into  and  executed 
by  all  my  executors  or  trustees. 

Another  form  is  given  on  p.  563. 

4.   Just  Debts  and  Funeral  Expenses. 

"The  preliminary  direction  to  pay  all  the  testa- 
tor's just  debts  adds  nothing  to  the  duty  imposed 
upon  all  executors  by  law."  Bacon  v.  Pomeroy,  104 


330  TESTAMENTARY   FORMS 

Mass.  577,  585.  Unless  the  testator  desires  to  make 
some  extraordinary  provision,  there  would  seem  to 
be  no  need  of  authorizing  the  executor  to  pay 
funeral  expenses,  as  the  law  raises  a  promise  on  the 
part  of  the  executor  to  pay  them,  so  far  as  he  has 
assets.  Hapgood  v.  Houghton,  10  Pick.  154,  156. 
Expenses  of  funeral  and  last  sickness  are  preferred 
charges  in  many  States. 

It  is  often  well  to  have  a  definite  understanding 
with  a  housekeeper  and  with  women  whose  services 
are  supposed  to  pay  for  their  board.  In  many  cases 
estates  have  been  compelled  to  pay  bills  which  were 
really  without  merit. 

It  has  already  been  stated  that  it  is  advisable  to 
provide  as  to  a  burial  lot  and  tombstone  and  also  as 
to  their  care  and  preservation.  See  pp.  81  et  seq., 
where  forms  may  be  found. 

The  debts  of  a  testator  are  primarily  payable  out 
of  personalty,  and  realty  will  be  resorted  to  only 
after  the  personalty  is  exhausted.  See  pp.  269 
et  seq.  Debts  may,'  of  course,  be  charged  by  will 
upon  realty,  but  such  directions  are  unusual.  See 
p.  159. 

Frequently  testators  insert  explicit  directions  as 
to  marshalling  assets  to  pay  debts,  and  also  state- 
ments as  to  the  amount  and  nature  of  their  obliga- 
tions for  the  guidance  of  then1  executors,  as  in  the 
forms  given  below.  Every  will  should  confer  a 
power  of  sale  upon  the  executors.  See  p.  333. 

The  following  forms  may  be  used  for  the  informa- 
tion of  executors: 


EXECUTOR  331 

DEBTS  OF  TESTATOR. 

For  the  information  of  my  executors  I  desire  to 
say  that  at  present  I  have  no  debts  except  those  of 
a  trifling  nature  incurred  from  time  to  time  by  the 
purchase  of  things  for  domestic  use  and  consump- 
tion. I  see  no  reason  why  at  the  time  of  my  decease 
I  should  have  any  obligations  except  those  of  a 
similar  kind. 

I  now  state  for  the  guidance  of  my  executors  that 
I  have  never  indorsed  commercial  paper  for  others 
or  have  become  liable  as  surety  on  bonds  or  other 
stipulations  or  obligations,  and  that  it  is  my  inten- 
tion to  have  no  debts  at  the  tune  of  my  decease, 
except  those  few  necessary  ones  of  a  domestic 
nature,  which  are  incurred  from  day  to  day. 

My  only  debts  at  the  present  tune  are  those  of  a 
trifling  nature  and  a  few  outstanding  notes  as  evi- 
denced on  my  ledger.  And  I  say  for  the  informa- 
tion of  my  executors  that  I  do  not  intend  to  have  at 
the  tune  of  my  decease  any  obligations  outstanding 
other  than  those  of  a  similar  kind. 

My  debts  at  the  present  time  are  insignificant 
and  I  do  not  expect  that  they  will  be  any  larger  at 
the  time  of  my  decease.  I  feel  it  advisable,  how- 
ever, to  state  for  the  information  of  my  executors 
that  certain  parties  contend  that  they  have  claims 
to  a  large  amount  against  me.  These  claims  are 
absolutely  without  merit,  and  I  desire  and  instruct 


332  TESTAMENTARY   FORMS 

my  executors  to  resist  them  to  the  extent  of  the 
law.  I  have  prepared  a  memorandum  giving  the 
history  of  these  claims  and  a  summary  of  the  evi- 
dence which  may  be  adduced  to  disprove  them. 
This  memorandum  is  addressed  to  my  said  ex- 
ecutors and  will  be  found  with  my  papers  at  the 
time  of  my  decease. 

It  is  impossible  for  any  claims  to  be  presented 
against  my  estate,  except  those  which  spring  from 
legitimate  business  transactions.  I  have  never 
signed  or  indorsed  accommodation  paper  or  given 
my  name  in  any  way  for  the  use  and  benefit  of  a 
friend,  nor  do  I  propose  to  sign  or  indorse  accom- 
modation paper  or  allow  my  name  to  be  used  in 
any  way  for  another. 

The  following  form  is  taken  from  an  actual  will : 

I  authorize  whomsoever  shall  have  the  execution 
of  this  my  will,  to  make  what  appears  to  him  or  them, 
upon  any  evidence  he  or  they  may  think  sufficient, 
a  full,  just  and  equitable  settlement  of  all  my  ac- 
counts and  affairs,  and  of  all  claims  by  or  against 
me  or  my  estate,  and  to  pay  over,  transfer,  deliver 
and  convey,  as  he  or  they  shall  deem  just  and  right, 
all  such  sums  of  money,  personal  property  and  real 
estate  as  according  to  my  accounts,  or  any  agree- 
ment, obligation,  or  memorandum  of  mine,  or  any 
other  evidence  which  they  may  deem  sufficient, 
appears  to  his  or  their  satisfaction  to  belong  or  to 
be  due  to  any  person,  notwithstanding  that  the 


EXECUTOR  333 

apparent  legal  title  is  in  me,  and  that  the  legal 
evidence  of  such  claims,  or  of  the  right  of  such  per- 
sons, is  wanting  or  imperfect. 

While  it  is  customary  not  to  resort  to  real  estate 
for  the  payment  of  debts  until  the  personalty  has 
been  exhausted,  yet  the  condition  of  my  assets  may 
be  such  at  the  time  of  my  decease,  that  my  exec- 
utors may  deem  it  best  to  sell  some  of  my  produc- 
tive real  estate  and  pay  my  debts  with  the  proceeds. 
I  desire  and  direct  my  executors  to  use  their  judg- 
ment and  discretion  in  the  matter,  and,  if  they  deem 
it  best  to  sell  my  real  estate  for  the  purpose  indi- 
cated, ample  power  and  authority  so  to  do  is  here- 
inafter conferred  upon  them. 

While  it  is  unusual  to  confer  upon  executors 
authority  to  borrow  money,  yet  the  condition  of  my 
property  at  the  tune  of  my  decease  may  be  such 
that  ready  money  for  the  payment  of  debts  may 
not  be  available.  I  hereby  authorize  and  empower 
my  executors,  if  in  the  exercise  of  their  judgment 
they  deem  it  advisable  for  the  settlement  of  my 
estate,  to  borrow  such  sum  or  sums  of  money  as 
they  may  deem  best  and  secure  payment  thereof 
by  mortgage  or  mortgages  on  my  real  estate  or 
mortgage  or  pledge  of  my  personal  property. 

5.   Powers  to  Sell,  Mortgage,  Lease,  etc. 

Powers  given  to  executors  and  trustees  are  dis- 
cretionary or  imperative,  general,  special,  or  par- 


334  TESTAMENTARY   FORMS 

ticular,  and  coupled  or  not  coupled  with  an  interest. 
In  some  States,  as  in  New  York,  statutes  define 
both  general  and  special  powers.  Powers  may  be 
given  for  numerous  purposes,  but  those  conferred 
by  will  are  more  often  to  sell,  lease,  mortgage,  par- 
tition, etc. 

It  is  to  be  noted  that  in  many  States  the  heirs  or 
devisees  of  the  testator  are  entitled  to  the  rents 
and  profits  of  his  real  estate  until  sold  for  the  pay- 
ment of  his  debts,  and  that  if  the  executor  uses  or 
occupies  any  part  of  the  real  estate  he  has  to  account 
for  the  income  thereof. 

In  all  cases  of  powers  of  sale  it  is  well  for  a 
testator  to  bear  in  mind  the  law  of  conversion  of 
either  real  into  personal  or  of  personal  into  real 
estate.  Where  there  are  such  directions  embarrass- 
ing cases  often  arise,  and  the  testator's  intention 
should  be  clearly  expressed. 

"  It  has  long  been  the  established  rule  where 
executors  are  clothed  with  the  power  and  duty  to 
sell  a  testator's  real  estate  and  distribute  the  pro- 
ceeds in  the  manner  provided  by  the  will  that  the 
real  estate  will  be  deemed  converted  into  personalty." 
Underwood  v.  Curtis,  127  N.  Y.  523,  532.  On  the 
other  hand,  another  tribunal  lays  down  the  following 
rule: 

If  either  by  the  direction  of  the  testator  himself , 
or  by  operation  of  law,  land  devised  as  real  estate  is 
converted  into  money  for  the  purpose  of  better  in- 
vestment, or  for  any  other  purpose  consistent  with 
the  design  and  purpose  of  the  ultimate  destination  to 


EXECUTOR  335 

which  the  real  estate  was  appropriated,  "  the  money 
is  substituted  for,  and  stands  in  the  place  of,  the  de- 
vised real  estate,  and  shall  go  to  the  same  persons 
and  in  the  same  proportions,  and  vest  in  possession 
and  enjoyment  at  the  same  times  and  upon  the  same 
contingencies  which  would  have  affected  the  real 
estate  had  it  remained  specifically  in  real  estate." 
Holland  v.  Cruft,  3  Gray,  162,  181.  See  Hovey  v. 
Dary,  154  Mass.  7. 

"  Wherever  the  intention  of  the  testator  is  clear 
to  convert  real  into  personal  estate,  the  law  will 
regard  it  as  converted  to  that  extent  at  the  death 
of  the  testator;  and  he  who  takes  under  the  will 
takes  it  with  the  character  which  the  will  has  im- 
pressed upon  it."  Hammond  v.  Putnam,  110  Mass. 
232,  236. 

A  testator  may  desire  to  insert  one  or  the  other 
of  the  following  forms: 

PROVISION  AS  TO  CONVERSION. 

I  declare  and  will  that  all  real  estate  sold  by  my 
executor  conformably  to  the  power  of  sale  just  con- 
ferred upon  him  shall  be  regarded  as  converted  into 
personalty  as  of  the  tune  of  my  decease,  and  that 
the  rents,  profits,  issues  and  income  thereof  from 
said  time  until  the  time  of  sale  shall  belong  to  and 
be  a  part  of  my  personal  estate. 

I  declare  and  direct  that  in  the  event  of  the  ex- 
ercise by  my  executors  of  the  power  of  sale  of  real 
estate  conferred  upon  them  above,  the  proceeds  of 


336  TESTAMENTARY   FORMS 

such  sale  shall  be  used  and  applied  in  the  same 
manner  as  the  realty  so  sold  and  converted  is  here- 
inbefore directed  to  be  used  and  applied. 

It  is  always  well  to  insert  hi  a  will  a  provision  con- 
ferring upon  executors  and  trustees  a  full  power  of 
sale,  and  often  as  well  a  power  to  mortgage  and 
lease.  Many  authorities  suggest  that  it  is  wise  to 
state  the  purpose  for  which  the  power  of  sale  is 
given. 

If  the  power  is  given  to  the  executors  or  trustees, 
as  such,  in  their  official  capacity,  and  virtute  officii, 
or  to  them  as  joint  tenants,  or  to  the  survivors  or 
survivor  of  them,  it  can  be  exercised  so  long  as  there 
is  a  single  executor  or  trustee  remaining.  Gibbs  v. 
Marsh,  2  Met.  243.  An  authority  to  an  executor 
"to  sell  and  make  conveyance  of  my  personal  or 
real  estate,  either  at  public  or  private  sale,  as  the 
proper  and  convenient  settlement  of  the  estate  may 
require,"  empowers  him  to  sell  the  real  estate  only 
for  the  payment  of  debts,  legacies,  and  the  charges 
of  administration  entering  into  the  settlement  of 
the  estate  in  the  Probate  Court,  and  not  to  make 
partition  or  distribution  among  the  devisees.  Allen 
v.  Dean,  148  Mass.  594. 

As  trusts  are  likely  to  be  of  long  duration,  the 
question  which  constantly  arises  is  whether  the 
power  is  given  to  new  executors  or  trustees  who 
may  from  tune  to  tune  be  substituted.  The  expres- 
sion "said  trustees,"  when  used  after  the  power  has 
been  conferred,  without  words  of  enlargement  or 


EXECUTOR  337 

explanation,  is  generally  regarded  as  having  a  re- 
strictive significance.  Parker  v.  Sears,  117  Mass. 
513,  524.  Hence,  where  the  intention  is  to  give  all 
the  powers  to  the  successors  which  are  given  to  the 
original  executors  or  trustees,  it  would  seem  to  be 
advisable  to  pursue  one  of  two  methods:  either  to 
use  the  expressions  "the  trustees  or  trustee  [exec- 
utors or  executor]  for  the  time  being  of  my  will," 
or  else  employ  the  expressions  "my  trustees  or 
trustee,"  "my  executors  or  executor/'  and  then  add 
at  the  end  of  the  will  a  clause  to  the  effect  that 
"my  trustees  or  trustee,"  "my  executors  or  execu- 
tor," shall  include  the  trustees  or  trustee  or  the 
executors  or  executor  for  the  time  being,  whether 
original  or  substituted.  See  forms  on  pp.  527,  535, 
541. 

In  many  cases  the  power  to  sell  is  repeated  so  as 
to  be  made  to  apply  to  property  derived  from  the 
proceeds  of  the  first  sale,  and  so  on,  although  such 
authority  is  doubtless  conferred  by  the  first  power. 
To  give  a  power  to  sell  for  the  payment  of  debts  and 
legacies  is  generally  all  that  is  necessary  in  the  case 
of  executors;  but  the  testator  may  desire  to  go  fur- 
ther in  the  case  of  trustees,  and  give  them  power 
to  sell  not  only  personal  but  also  real  estate  for  the 
purpose  of  distributing  the  proceeds  among  the 
remainder-men  at  the  termination  of  the  trust.  It 
is  suggested  that  the  exercise  of  this  power  as  to 
realty  may  in  some  cases  be  made  dependent  upon 
the  written  consent  under  seal  of  the  remaindermen, 
provided  they  are  all  over  twenty-one  years  of  age. 


338  TESTAMENTARY   FORMS 

To  meet  the  old  rule  in  equity  that  the  purchaser 
or  mortgagee  of  trust  property  must  see  that  the 
money  he  pays  or  lends  to  the  trustee  is  properly 
applied  by  him,  a  clause  is  generally  inserted  in 
most  powers  of  sale  to  the  effect  that  the  purchaser 
shall  not  be  required  to  see  to  the  application  of 
the  purchase  money.  The  same  purpose  is  often 
subserved  by  providing  that  executors'  and  trustees' 
receipts  shall  exonerate  the  persons  taking  the 
same  from  all  liability.  It  is  said  that  the  purchaser 
must  look  to  the  will  (especially  in  the  case  of  real 
estate)  for  the  power  of  the  executor;  and,  if  the 
executor  is  fully  authorized  to  sell  and  convey,  the 
purchaser  will  be  liable  only  when  the  purchase 
is  fraudulent  or  collusive.  See  1  Perry  on  Trusts, 
§224. 

When  a  testator  makes  a  power  of  sale  depend- 
ent upon  the  consent  of  one  or  more  persons,  it 
is  well  to  require  that  such  consent  be  hi  writing, 
and  also  to  provide  that  if  one  or  more  dies,  or  is 
for  some  other  reason  rendered  incapable  of  acting, 
the  consent  of  the  survivors  or  survivor  shall  be 
sufficient. 

If  a  testator  desires  that  his  executor  or  trustee 
shall  have  power  to  mortgage  his  real  estate,  or  ex- 
tend or  renew  any  mortgage  already  subsisting 
thereon,  power  to  that  effect  should  be  given  in  the 
will;  for,  as  a  general  rule,  a  power  to  sell  and  con- 
vey does  not  confer  a  power  to  mortgage.  4  Kent 
Com.  331. 


EXECUTOR  339 

The  following  forms  are  offered: 

POWERS  OF  SALE,  RECEIPTS,  APPLICATION  OP 
PURCHASE  MONEY. 

I  hereby  authorize  and  empower  my  said  trustees 
to  sell  both  real  and  personal  estate,  by  public 
auction  or  by  private  sale,  for  such  prices  and  upon 
such  terms  as  they  may  judge  best  and  to  convey 
the  same  by  proper  deeds  of  conveyance  and  to  in- 
vest the  proceeds  of  any  such  sale  or  sales  hi  real  or 
personal  estate,  in  both  or  either,  as  they  may  deem 
expedient,  and  again  to  sell,  assign,  convey  and  dis- 
pose of  such  real  and  personal  estate  as  may  be  so 
purchased  by  them,  by  public  auction  or  by  private 
sale,  and  to  convey  the  same  by  proper  instruments 
of  conveyance,  and  the  proceeds  to  reinvest  accord- 
ing to  their  discretion,  and  so  from  time  to  time  to 
alter  and  change  the  investments  as  they  may  deem 
most  advisable,  always  having  regard  to  the  security 
thereof  and  to  the  certainty  of  the  income.  In  the 
case  of  all  such  sales  for  the  purpose  of  making 
proper  distribution  and  division  among  the  re- 
mainder-men at  the  termination  of  the  trust,  I  au- 
thorize my  said  trustees  to  exercise  the  above  power 
as  to  personalty  as  they  may  deem  best,  but  as  to 
realty  only  upon  the  written  consent  under  seal  of 
all  the  remainder-men  and  only  then  provided  all 
the  remainder-men  are  over  twenty-one  years  of  age. 

I  hereby  authorize  and  empower  my  said  execu- 
tors, if  in  the  settlement  of  my  estate  they  deem  it 


340  TESTAMENTARY  FORMS 

advisable  either  for  the  payment  of  debts  or  of 
legacies  or  of  both,  to  sell  both  real  and  personal 
estate  by  public  auction  or  by  private  sale,  for  such 
prices  and  upon  such  terms  as  they  may  judge  best, 
and  to  convey  the  same  by  such  deeds  and  instru- 
ments of  conveyance  and  transfer  as  may  be  neces- 
sary and  proper. 

I  give  to  a  majority  of  the  three  executors  of  this 
will  and  to  the  survivors  or  survivor  of  them  full 
power  and  authority,  in  the  exercise  of  their  dis- 
cretion as  to  time,  manner  and  terms,  to  sell  by 
public  auction  or  by  private  sale,  and  to  mortgage 
or  lease  both  real  and  personal  estate,  of  which  I 
may  die  seized  and  possessed  and  which  is  not 
specifically  devised  and  bequeathed  herein,  and  exe- 
ute,  acknowledge  and  deliver  all  deeds,  mortgages 
or  leases  or  other  instruments  that  may  be  required; 
and  in  no  case  shall  the  purchaser  or  purchasers,  the 
mortgagee  or  mortgagees,  or  the  lessee  or  the  lessees, 
be  required  to  see  to  the  application  of  the  purchase 
money  or  rent. 

I  authorize  and  empower  my  executor  to  sell  by 
public  auction  or  by  private  sale,  or  to  mortgage, 
using  his  discretion  in  all  cases  as  to  tune  and  terms, 
and  to  improve  in  any  manner  he  may  deem  best, 
any  or  all  of  my  personal  or  real  estate,  and  I  further 
authorize  and  empower  him  to  invest  and  reinvest 
the  proceeds  in  securities  and  other  property  suit- 
able and  proper  for  executors  and  trustees  to  invest 


EXECUTOR  341 

in.  And  to  this  end  I  also  authorize  him  to  execute 
send  deliver  such  instruments  of  transfer  or  mortgage 
as  may  be  necessary  and  proper;  and  no  purchaser 
or  mortgagee  shall  in  any  case  be  required  to  look 
to  the  application  of  the  purchase  money. 

I  hereby  authorize  my  executor  to  sell  any  or  all 
of  my  real  or  personal  estate  by  public  auction  or 
by  private  sale  and  convey  the  same  by  proper  deeds 
of  conveyance;  and  no  purchaser  shall  be  com- 
pelled to  see  to  the  application  of  the  purchase 
money. 

If  in  the  settlement  of  my  estate  my  executor  finds 
it  expedient  to  change  investments  or  if  in  the  pay- 
ment of  debts  and  legacies  he  finds  it  necessary  to 
sell  any  property,  then  I  give  him,  in  his  discretion, 
full  power  and  authority  to  sell  both  real  and  per- 
sonal estate  by  public  auction  or  by  private  sale 
and  convey  the  same  by  such  deeds  or  other  instru- 
ments as  may  be  necessary  to  convey  a  complete 
title;  and  no  purchaser  shall  be  required  to  see  to 
the  application  of  the  purchase  money. 

To  facilitate  the  settlement  of  my  estate  or  for 
any  other  proper  purpose,  my  executor  or  his  suc- 
cessor is  hereby  authorized  and  empowered  to  sell 
by  public  or  private  sale  any  real  or  personal  estate, 
not  specifically  devised  or  bequeathed  herein,  and 
to  execute  and  deliver  such  deed  or  deeds  as  may  be 
requisite  to  vest  the  title  absolutely  in  the  purchaser 


342  TESTAMENTARY   FORMS 

or  purchasers,  who  shall  not  be  required  to  see  to  the 
application  of  the  purchase  money. 

The  receipts  of  the  executors  and  trustees  of  this 
will  for  any  moneys  paid  and  for  any  properties 
transferred  to  them  shall  be  an  absolute  discharge 
to  the  person  or  persons  paying  or  transferring  the 
same  and  such  person  or  persons  shall  not  be  re- 
quired to  see  to  the  application  or  be  liable  for  the 
misapplication  thereof. 

Special  directions  are  sometimes  given  as  to  in- 
terests held  in  common,  as  in  the  following  form: 

If  in  the  exercise  of  the  power  of  sale  hereinbefore 
conferred  upon  them  my  executors  deem  it  best  to 
dispose  of  any  interest  in  real  estate  which  I  may 
hold  as  a  joint  tenant  or  as  tenant  hi  common,  I 
hereby  authorize  and  empower  said  executors  to 
sell  and  convey  said  interest,  to  the  other  joint 
tenants  or  tenants  in  common,  at  such  price  as  they 
may  deem  reasonable,  but,  if  it  is  impossible  to 
agree  upon  a  price,  then  I  direct  that  the  price  may 
be  fixed  by  arbitration  —  each  side  to  appoint  an 
arbitrator  —  and,  if  the  two  so  appointed  are  unable 
to  agree,  they  shall  appoint  a  third;  and  the  valuation 
fixed  by  the  original  two  or  a  majority  of  the  three, 
as  the  case  may  be,  shall  be  obligatory  and  binding. 

Other  forms  of  powers  of  sale  are  given  on  pp.  511, 
522, 582, 586.  Forms  of  receipts  are  given  on  pp.  512, 
523,  530,  587. 


EXECUTOR  343 

In  the  following  forms  authority  is  given  executors 
to  lease: 

AUTHORITY  TO  LEASE. 

I  authorize  and  empower  my  executors  to  lease 
any  and  all  of  my  real  estate  for  terms  not  exceeding 
five  years  from  the  proving  of  my  will  with  such 
covenants  and  provisions  as  may  be  proper  and 
fitting. 

I  give  my  executors  full  power  and  authority  to 
lease  all  or  any  part  of  my  real  estate  for  a  term  or 
term  of  years  which  shall  not  exceed  the  period  when 
my  estate  can  be  fully  settled. 

It  is  often  well  to  confer  upon  executors  and 
trustees  broad  discretionary  powers,  as  in  the  follow- 
ing forms: 

DISCRETIONARY  POWERS. 

The  powers  conferred  hi  this  will  upon  my  execu- 
tors and  trustees  are  to  be  exercised  in  their  dis- 
cretion and  are  not  to  be  regarded  as  imperative. 

The  powers  conferred  upon  my  executors  in  this 
will  to  be  exercised  in  their  discretion  are  conferred 
alike  upon  any  administrator  or  administrators 
with  the  will  annexed. 

I  declare  and  direct  that  the  powers  to  be  exercised, 
as  hereinbefore  provided,  in  the  discretion  of  my 


344  TESTAMENTARY   FORMS 

executors  and  trustees,  shall  extend  to  and  be  exer- 
cised by  the  executors  and  trustees  for  the  time 
being,  whether  original  or  substituted. 

The  discretion  hereinbefore  given  to  my  executors 
and  trustees  shall  be  exercised  as  fully  and  freely  by 
them  as  I  could  exercise  the  same  if  living  and  shall 
extend  to  and  include  all  executors  and  trustees, 
whether  original  or  substituted. 

Wherever  I  have  conferred  upon  my  executors 
and  trustees  in  this  will  power  and  authority  to  be 
exercised  in  their  discretion,  their  judgment  shall 
be  conclusive  and  shall  not  be  questioned  or  im- 
peached by  any  one. 

All  the  property  and  estate  given  by  this  will  shall 
vest  in  the  executors  and  trustees  for  the  timelbeing, 
whether  original  or  substituted;  and  all  the  powers, 
responsibilities,  duties  and  discretion  herein  created 
are  bestowed  upon  and  shall  be  exercised  by  my 
executors  and  trustees  for  the  time  being,  whether 
named  herein  or  hereafter  appointed. 

Another  form  may  be  found  on  p.  551. 

6.  Executors  and  Trustees  Purchasing  Trust  Prop- 
erty. 

No  rule  is  better  established  than  that  which 
prohibits  executors  and  trustees  from  purchasing 
trust  property;  yet  permission  so  to  do  is  sometimes 


EXECUTOR  345 

given  as  in  the  following  provisions  taken  from 
actual  wills: 

PERMISSION  TO  PURCHASE  TRUST  PROPERTY. 

I  authorize  and  empower  either  of  my  executors 
to  purchase  any  portion  of  my  estate,  whether  real 
or  personal,  notwithstanding  the  fact  of  his  or  her 
executorship,  and,  for  the  purpose  of  such  purchase, 
I  authorize  and  direct  my  other  executors  to  fix  the 
price  in  their  absolute  discretion  and  the  same  shall 
be  binding  for  all  purposes. 

Upon  the  sale  of  any  of  my  real  estate  held  in 
common  with  any  other  person,  it  is  my  will  and  I 
direct  that  such  person  shall  be  fully  authorized 
and  empowered  to  purchase  and  hold  such  real 
estate  for  his  own  account  and  benefit  notwithstand- 
ing he  may  then  be  acting  as  an  executor  or  trustee 
under  this  my  will,  and  a  conveyance  to  such  executor 
or  trustee  individually  of  the  real  estate  so  purchased 
shall  be  deemed  as  absolute  and  effectual  as  though 
such  person  had  not  been  named  as  an  executor  of 
or  trustee  under  this  my  will  or  qualified  as  such. 

7.  Directions  as  to  Insurance. 

While  there  are  intimations  that  an  executor, 
trustee,  or  guardian  is  not  required  to  insure,  yet  a 
prudent  one  will  always  do  so;  and  a  provision  in 
the  will  may  be  advisable.  See  Loring's  A  Trustee's 
Handbook  (3d  ed.),  148. 


346  TESTAMENTARY   FORMS 

The  following  are  offered  as  forms: 

INSURANCE. 

I  enjoin  upon  my  executors  and  trustees  the  con- 
stant remembrance  of  their  duties  relative  to  insur- 
ing the  buildings  upon  my  real  estate  against  loss 
by  fire.  I  direct  that  said  buildings  be  insured  for 
an  amount  equal  to  at  least  three  quarters  of  their 
real  valuation,  the  premiums,  in  the  case  of  my 
executors,  to  be  paid  out  of  the  general  funds  of 
my  estate,  and,  in  the  case  of  my  trustees,  out  of 
the  income  of  the  trust  property. 

I  direct  my  executors  and  trustees  to  keep  the 
buildings  upon  my  real  estate  constantly  insured 
against  loss  by  fire  in  such  sums  or  amounts  as  they 
may  think  advisable. 

I  direct  my  executors,  if  any  policies  of  insurance 
against  loss  by  fire  upon  the  buildings  upon  my  real 
estate  expire  during  the  term  of  their  executorship, 
to  renew  the  same  for  such  amounts  as  they  may 
deem  ample. 

I  direct  my  executors  and  trustees  to  keep  the 
buildings  upon  my  real  estate  insured  against  loss 
by  fire  in  amounts  equal  to  their  assessed  valuation. 

Having  always  been  my  own  underwriter  and 
having  never  sustained  a  loss,  I  direct  my  executors 
in  no  event  to  insure  the  buildings  upon  my  real 


EXECUTOR  347 

estate  against  loss  by  fire;  and  in  the  event  of  any 
such  loss  I  release  said  executors  from  all  liability 
therefor. 

I  direct  my  said  executor  to  insure  for  a  period 
covering  his  official  term  of  service  all  buildings  be- 
longing to  my  estate,  all  other  perishable  property 
and  ships  at  sea,  if  any,  and  to  charge  all  premiums 
paid  therefor  to  the  general  funds  of  my  estate. 

I  direct  my  said  trustee  [guardian]  to  keep  all 
perishable  property,  such  as  buildings,  well  insured 
and  to  pay  the  premiums  from  income.  If  he  invests 
trust  funds  hi  mortgages  of  real  estate,  he  is,  of 
course,  excused  from  insuring,  provided  the  mort- 
gagor insures  for  his  benefit. 

I  authorize  and  direct  my  executors  and  trustees 
to  exercise  their  discretion  in  the  matter  of  insuring 
the  buildings  upon  my  real  estate  against  loss  by 
fire.  If  they  deem  it  best  not  to  insure  said  build- 
ings or  any  of  them,  then  I  release  them  from  any 
responsibility  or  liability  by  reason  of  any  loss  to 
my  estate  from  such  non-insurance. 

8.  Taxation  of  Estate  of  Deceased  Person. 

During  the  two  or  three  years  in  which  the  estate 
is  in  course  of  settlement  the  taxes  may  absorb  a 
large  part  of  the  income.  It  may  be  that  in  some 
cases  testators  may  desire  to  make  special  pro- 
visions. The  payment  of  taxes  upon  inheritances 
is  treated  on  p.  287. 


348  TESTAMENTARY   FORMS 

9.  Compromise  and  Arbitration. 

In  some  States  liberal  powers  are  conferred  by 
statute  upon  probate  and  other  courts  to  authorize 
executors,  administrators,  guardians,  and  trustees 
to  adjust  by  arbitration  or  compromise  any  demands 
in  favor  of  or  against  the  estate.  There  are  few 
decisions  upon  the  subject,  as  a  compromise  neces- 
sarily prevents  or  terminates  litigation.  Testators 
frequently  confer  such  authority  by  will,  as  in  the 
following  forms: 

COMPROMISE  AND  ARBITRATION. 

I? authorize  and  empower  my  executors  to  com- 
promise all  claims  in  favor  of  or  against  my  estate 
existing  at  the  time  of  my  decease,  hi  the  same  way 
as  I  could  do  if  living.  To  this  end  I  clothe  my  said 
executors  with  absolute  authority;  and  their  judg- 
ments, findings,  adjustments  and  settlements  of  all 
claims  and  controversies  are  to  be  final  and  binding 
upon  my  estate  and  are  not  to  be  called  in  question 
by  any  one. 

I  authorize  and  empower  my  executors  to  com- 
promise any  debt  or  debts  due  and  owing  to  my 
estate  by  the  receipt  of  cash  or  by  allowing  time  or 
by  accepting  security,  real  or  personal,  therefor, 
and  any  debt,  debts  or  demands  against  my  estate 
by  paying  cash  in  settlement  thereof;  and  hi  either 
case  I  authorize  my  said  executors  to  adjust  dif- 
ferences and  disputes  by  submitting  the  same  to 
arbitration. 


EXECUTOR  349 

I  authorize  my  executors  to  adjust  and  settle  all 
claims  in  favor  of  or  against  my  estate  either  by 
compromise  or  arbitration. 

I  authorize  and  empower  my  executor  to  compro- 
mise all  debts  and  demands  due  my  estate  as  well 
as  those  held  against  my  estate  in  the  way  and 
manner  that  may  seem  to  him  most  suitable  and 
expedient,  and  I  release  him  from  all  responsibility 
for  any  loss  which  my  estate  may  sustain  by  reason 
of  his  actions  in  the  premises. 

I  hereby  declare  and  direct  that  the  executors  of, 
and  the  trustees  under,  this  will  shall  have  full 
power  and  authority  to  settle  all  disputes  and  con- 
troversies relative  to  and  growing  out  of  the  estates 
in  their  hands  without  obtaining  the  indorsement 
or  consent  of  any  court  or  tribunal  whatever. 

I  confer  upon  my  executors  full  power  and  author- 
ity to  adjust  and  settle  all  controversies  and  differ- 
ences which  may  exist  at  the  time  of  my  decease  or 
which  may  thereafter  arise  relative  to  my  business, 
property,  affairs  and  accounts,  intending  to  include 
herein  all  claims  against  and  in  favor  of  my  estate; 
and  I  authorize  and  empower  my  said  executors 
to  pay  over,  transfer  and  deliver,  as  they  in  their 
judgment  shall  deem  right,  all  moneys  and  other 
personal  property,  which,  according  to  my  books  of 
account  or  any  stipulations  or  memoranda  or  any 
other  evidence  satisfactory  to  them,  appear  to  be- 


350  TESTAMENTARY   FORMS 

long  to  any  person  or  persons,  notwithstanding  the 
fact  that  such  person  or  persons  would  be  unable 
successfully  to  establish  their  claims  in  court. 

I  authorize  and  empower  my  executors  and  trustees 
to  settle  and  adjust  by  compromise  or  arbitration 
all  demands  and  claims  whether  against  or  in  favor 
of  the  estates  in  their  possession  and  custody  and 
to  receive  or  pay  out  all  moneys  required  therefor; 
and  no  person  shall  call  in  question  the  acts  and 
doings  of  my  said  executors  and  trustees  hi  the 
premises,  but  the  same  shall  be  conclusive  and 
final. 

Whereas  my  relations  with  the  C.  Y.  Co.,  of  which 
I  am  one  of  the  largest  shareholders,  are  such  that 
a  difference  may  arise  after  my  decease  as  to  the 
disposal  of  my  stock  therein,  now,  therefore,  I  con- 
fer upon  my  executor  full  power  and  authority  to 
compromise  and  settle  any  controversy  that  may 
arise  relating  thereto  and  dispose  of  such  stock  in 
any  way  which  he  may  deem  most  advantageous, 
and  he  shall  not  be  held  liable  for  any  loss  sustained 
by  my  estate  by  reason  of  his  actions  in  the  premises. 

Another  form  may  be  found  on  p.  558. 

10.  Employment  of  Attorneys,  Agents,  Clerks,  etc., 
Consultation  with  Others,  Various  Requests. 

A  testator  often  expresses  requests  as  to  the  em- 
ployment of  an  attorney  by  the  executor,  as  to 


EXECUTOR  351 

consulting  with  the  testator's  wife  and  as  to  the 
retention  of  old  employees,  etc.,  as  in  the  following 
forms : 

ATTORNEYS,  AGENTS,  CLERKS,  ETC. 

I  desire  my  executors  to  employ  A.  B.  as  their 
attorney  and  counsellor  in  the  settlement  of  my 
estate. 

As  A.  B.  has  been  my  legal  adviser  for  many  years, 
I  recommend  that  my  executors  and  trustees  employ 
him  as  their  attorney  in  all  legal  matters  relating  to 
my  estate. 

I  particularly  request  my  executors  and  trustees 
to  employ  A.  B.  as  their  counsellor  and  attorney,  as 
his  familiarity  with  my  affairs  will  prove  both  to 
their  advantage  and  that  of  my  estate. 

I  desire  my  executors  to  consult  with  my  old  friend 
and  business  associate  A.  B.  about  matters  pertain- 
ing to  the  administration  of  my  estate.  While  the 
said  A.  B.  is  not  willing  to  assume  the  responsibilities 
of  an  executor,  I  am  sure  that  he  will  be  ready  and 
willing  at  all  tunes  to  afford  my  executors  advice 
and  suggestions. 

If  at  any  tune  my  executors  and  trustees  are  in 
doubt  as  to  the  administration  of  my  estate,  I  trust 
that  they  will  consult  with  my  friend  A.  B.  who,  I 
am  sure,  will  cheerfully  render  them  any  assistance 
in  his  power. 


352  TESTAMENTARY   FORMS 

I  request  my  executors  and  trustees  to  retain  in 
their  service  my  faithful  bookkeeper  A.  B.,  who  has 
been  in  my  employ  for  many  years. 

My  executors  are  authorized  to  employ  in  the 
settlement  of  my  estate  such  agents,  bookkeepers, 
and  servants  as  they  may  see  fit  and  give  them  ade- 
quate remuneration. 

I  direct  my  executors  to  expend  such  sum  as  they 
may  deem  necessary  for  the  services  of  clerks, 
bookkeepers,  etc.  to  assist  them  in  the  settlement 

of  my  estate. 

\ 

I  desire  my  executors  to  use  ample  funds  for 
clerical,  legal  and  other  expenses;  and  to  this  end 
I  authorize  them  to  hire  an  office  and  employ  clerks, 
bookkeepers,  agents  and  attorneys  as  they  may 
deem  best,  and  pay  all  the  expenses  and  charges 
thereof  out  of  the  funds  of  my  estate. 

I  desire  my  executors  and  trustees  to  employ  as 
their  attorney  A.  B.,  Esq.,  of  the  St.  Louis  bar,  who 
has  been  my  legal  adviser  for  many  years. 

If  my  executors  find  it  necessary  to  employ  a 
real  estate  broker  in  the  settlement  of  my  affairs,  I 
trust  that  they  will  continue  in  that  service  my 
trusted  friend  A.  B.,  of  etc. 

I  request  my  executors  to  consult  with  my  wife 
in  all  matters  pertaining  to  my  estate  and  carry  out 
her  wishes,  so  far  as  practicable. 


EXECUTOR  353 

As  my  holdings  in  the  Waketon  Manufacturing 
Company  are  large  and  as  I  have  shared  in  the 
management  and  direction  of  the  affairs  of  the 
Company  since  its  organization,  it  is  my  wish  that 
my  executor,  A.  B.  shall  succeed  me  in  the  board 
of  directors  and  shall  be  re-elected  to  the  posi- 
tion at  least  so  long  as  my  estate  is  in  process  of 
settlement. 

As  my  interests  in  real  estate  in  other  jurisdictions 
than  that  of  my  domicile  are  considerable  —  espe- 
cially in  the  city  of  Chicago  —  I  recommend  to  my 
executors  to  continue  to  employ  my  agent,  A.  B., 
who  has  so  long  managed  said  real  estate  in  said 
city  and  remitted  to  me  the  rents  thereof.  If  the 
said  A.  B.  should  decline  to  act  or  should  die,  then 
I  authorize  my  said  executors  to  employ  any  other 
competent  person  for  the  purposes  aforesaid;  and 
they  may  confer  on  said  A.  B.  or  any  other  person 
so  employed  by  them  such  discretionary  powers 
as  they  may  see  fit  without  any  accountability  on 
their  part  for  the  default  or  wrongdoing  of  such 
agent.  I  authorize  my  said  executors  to  pay  the 
said  A.  B.  or  any  other  person  they  may  employ 
such  compensation  as  they  may  deem  proper. 

Other  forms  are  found  on  pp.  563,  573. 

11.  Suggestion  as  to  Keeping  Records. 

If  an  estate  is  large  and  the  interests  are  compli- 
cated, it  may  be  well  to  insert  in  the  will  a  recom- 


354  TESTAMENTARY   FORMS 

mendation  that  the  executors  and  trustees  keep  a 
record  of  every  meeting  held  by  them. 

KEEPING  RECORDS. 

I  recommend  that  my  executors  [trustees]  keep  a 
record  of  every  meeting  held  by  them.  I  suggest 
that  one  of  them  be  selected  to  act  as  Clerk  or 
Secretary,  that  at  each  meeting  he  enter  in  a  book 
a  brief  statement  of  every  agreement  or  proposed 
action  and  that,  at  the  close  of  the  meeting,  each 
sign  the  entry  or  entries,  having  first  carefully  read 
the  same.  In  this  way  the  transaction  of  business 
may  be  facilitated,  misunderstandings  avoided,  and 
a  permanent  record  kept  of  the  settlement  of  the 
estate  [the  administration  of  the  trust]. 

I  desire  to  call  the  attention  of  my  executors  and 
trustees  to  the  necessity  of  system  and  method  in 
the  administration  of  their  trusts.  When  several 
people  are  charged  with  joint  responsibilities  it  is 
advisable  that  a  record  should  be  kept  of  all  agree- 
ments and  proposed  undertakings;  otherwise  mis- 
understandings are  likely  to  arise.  I  recommend 
that  my  executors  provide  themselves  with  a  memo- 
randum book  and  that  they  keep  therein  a  record 
of  all  transactions.  I  suggest  that  at  the  close  of 
every  meeting  of  the  executors  they  enter  in  the  book 
a  full  statement  of  the  business  transacted,  includ- 
ing any  proposed  undertaking,  and  that  they  affix 
their  signatures  to  the  statement,  so  that  no  oppor- 
tunity may  be  afforded  for  dispute  or  disagreement. 


EXECUTOR  355 

I  also  suggest  that  they  record  in  the  memorandum 
book  all  transactions  contemporaneously  with  their 
occurrence  and  that  they  also  affix  their  signatures 
to  the  same.  By  pursuing  the  method  suggested 
they  will  have  a  complete  account  of  all  the  business 
transacted  during  the  two  years  or  more  of  their 
incumbency. 

I  recommend  that  they  pursue  the  same  course 
as  trustees,  for  while  the  volume  of  business  to  be 
transacted  by  them  in  that  capacity  will  be  less 
than  that  which  will  devolve  upon  them  as  executors, 
yet,  as  the  trust  will  probably  continue  for  many 
years,  an  accurate  record  of  all  business  and  pro- 
ceedings will  prove  of  value  and  may  prevent  em- 
barrassments. 

Another  form  may  be  found  on  p.  563. 

12.  Delegation  of  Powers  and  Duties  by  Power  of 
Attorney. 

Executors  and  trustees  cannot  delegate  their 
powers  and  duties,  unless  expressly  authorized  so 
to  do  by  will: 

The  following  are  offered  as  forms: 

POWER  OF  ATTORNEY  BY  EXECUTOR  OR  TRUSTEE. 

I  authorize  each  of  my  executors  to  give  from  time 
to  time  as  occasion  and  convenience  may  require  a 
revocable  power  of  attorney  duly  executed  to  any 
one  or  more  of  his  co-executors  to  act  in  his  place 
and  stead  and  to  execute  in  his  name  as  such  execu- 


356  TESTAMENTARY   FORMS 

tor  any  instruments,  documents,  deeds  or  convey- 
ances which  said  executors  are  authorized  by  this 
will  or  by  law  to  execute. 

I  authorize  each  of  my  trustees  to  give  from  time 
to  time  as  occasion  and  convenience  may  require  a 
revocable  power  of  attorney  duly  executed  to  any 
one  or  more  of  his  co-trustees  to  act  in  his  place  and 
stead  and  to  execute  in  his  name  as  such  trustee 
any  instrument,  document,  deeds  or  conveyances, 
which  said  trustees  are  authorized  by  this  will  or 
by  law  to  execute. 

I  declare  that  any  executor  of  or  trustee  under 
this  will  may  authorize  by  an  instrument  under  his 
hand  and  seal,  duly  executed  and  acknowledged,  an 
attorney  in  fact  to  perform  all  the  duties  of  the 
office  of  executor  or  trustee,  including  the  execution 
of  deeds  and  all  other  legal  documents,  and  all  acts 
done  by  such  attorney  shall  be  as  legal  and  binding 
upon  my  estate  as  though  done  by  the  executor  or 
trustee  himself. 

Another  form  is  given  on  p.  563. 

13.  Instructions  as  to  Voting  Shares. 

"An  administrator  or  executor  may  vote  on  the 
stock  of  the  deceased  stockholder,  even  though  such 
stock  has  not  been  transferred  to  the  executor  or 
administrator  on  the  books  of  the  company.  Stock 
held  jointly  by  three  executors  cannot  be  voted 


EXECUTOR  357 

unless  they  all  agree  upon  the  vote.  Where  a  will 
gives  to  one  of  three  executors  the  power  to  vote 
the  stock,  and  directs  the  other  two  executors  to 
give  him  a  proxy  to  that  purpose,  the  court  will 
order  the  proxy  to  be  given,  even  though  he  intends 
to  vote  himself  into  office,  and  he  may  not  be  a 
good  manager."  2  Cook  on  Corporations  (6th  ed.), 
§  612.  In  some  States  there  are  statutes  declaring 
that  executors,  administrators,  guardians,  trustees, 
or  persons  in  any  other  representative  or  fiduciary 
capacity  may  vote  as  stockholders  upon  stock  held 
in  such  capacity.  And  there  are  also  statutes 
providing  that  the  estates  in  their  hands  shall  be 
liable  to  no  greater  extent  than  the  person  interested 
in  the  trust  fund  would  have  been  if  living. 
Forms  like  the  following  may  be  serviceable: 

VOTING  SHARES. 

i 

I  authorize  and  direct  both  the  executors  of  and 
the  trustees  under  this  will  to  vote,  at  all  corporate 
meetings,  personally  or  by  their  proxies,  the  shares 
of  any  railways  and  other  corporations  belonging 
to  my  estate  in  their  hands,  custody  and  possession. 
I  enjoin  harmony  on  my  said  executors  and  trustees, 
so  that  they  may  always  vote  said  shares  as  a  unit. 

I  authorize  and  empower  my  said  wife  and  son  as 
executors  of  this  will  to  represent  and  vote,  so  long 
as  their  executorship  continues,  at  all  corporate 
meetings,  the  shares  belonging  to  my  estate  in  any 
and  all  corporations;  and  to  this  end  I  authorize 


358  TESTAMENTARY   FORMS 

and  empower  them  to  execute  and  deliver  such 
proxies  as  may  be  proper  and  necessary,  and  revoke 
the  same  at  pleasure. 

Another  form  is  given  on  p.  573. 

Sometimes  testators  make  specific  bequests  of 
shares  of  stock  with  the  request  that  the  shares  be 
voted  hi  a  certain  way,  as  in  the  following  form: 

I  give  to  the  Free  Home  for  Foundlings  of  etc., 
my  1000  shares  of  the  capital  stock  of  the  Circuit 
Railway  Co.,  the  certificate  being  numbered  917, 
and  dated  etc.  I  impose  no  restraint  upon  this 
bequest,  as  the  title  of  said  Home  for  Foundlings  to 
said  shares  is  to  be  absolute.  I  desire,  however, 
the  trustees  or  other  competent  authorities  of  said 
Home,  so  long  as  it  is  the  owner  of  said  shares,  to 
vote  the  same  at  shareholders'  meetings  in  favor 
of  those  policies  which  shall  promote  the  usefulness 
of  the  company  and  which  shall  prevent  its  subor- 
dination to  influences  likely  to  affect  unfavorably 
the  value  of  its  shares. 

14.  No  Inventory  or  Accounting. 

Some  testators  direct  that  their  executors  shall 
file  neither  inventory  nor  account.  There  are  few 
jurisdictions  where  such  directions  are  of  any  value, 
yet  the  following  form  is  from  an  actual  will: 

No  inventory,  list  or  accounting  shall  be  required 
of  my  executor  in  respect  to  my  estate,  and  he  is 


EXECUTOR  359 

fully  released  from  filing  such  inventory  list  or  ac- 
counting; nor  shall  any  bond  be  required  hi  any 
State  to  qualify  my  executor  to  act  as  executor, 
trustee  or  guardian. 

A  form  like  the  following  is  sometimes  used,  but 
it  is  probably  valueless  in  nearly  all  jurisdictions 
and  is  certainly  not  to  be  commended: 

I  confer  upon  my  executors  absolute  power  and 
authority  to  pay  all  debts  and  carry  out  and  execute 
all  the  provisions  of  this  will  without  the  direction, 
sanction,  indorsement  or  intervention  of  any  court 
of  probate  or  other  tribunal,  empowering  them  to 
do  all  things  in  the  premises  as  effectually  as  I  might 
do  if  living. 

15.  Auditing  Accounts  and  Examining  Securities. 

As  the  duties  of  executors  are  discharged  in  most 
cases  at  the  expiration  of  two  years  from  the  proving 
of  the  will,  the  insertion  hi  it  of  a  direction  to  the 
executors  to  permit  the  legatees  under  proper  regu- 
lations to  examine  accounts  and  securities  is  not  so 
urgent  as  hi  the  case  of  trustees.  If,  however,  a 
testator  desires  to  insert  such  a  direction,  a  form 
may  be  framed  from  those  given  on  p.  389. 


CHAPTER  XVI 

TRUST  AND  TRUSTEE  —  GUARDIAN 

TRUST  AND  TRUSTEE. 

I.   Language  and  Subject-Matter. 

IN  many  States  there  are  statutory  provisions 
as  to  the  creation  and  limitation  of  trusts.  Hence 
the  attorney  should  consult  the  statutes  of  the  tes- 
tator's domicile  before  drawing  the  will. 

That  there  are  often  good  reasons  for  not  creating 
a  trust,  see  pp.  489  et  seq.  A  trust  may  be  advisable, 
however,  — 

If  a  son  is  dissipated  or  incapable  of  managing  his 
affairs. 

If  a  daughter  has  an  untrustworthy  husband. 

If  the  testator  or  testatrix,  being  the  only  sur- 
viving parent,  leaves  young  children.  This  is  espe- 
cially advisable  if  the  mother,  who  is  left  a  widow, 
is  ignorant  of  affairs. 

If  the  testator  desires  to  make  a  helpless  relative 
or  friend  the  object  of  his  bounty. 

If  the  person  to  be  benefited  lives  in  another  ju- 
risdiction; as  a  married  woman,  the  laws  of  whose 
domicile  restrict  her  in  the  enjoyment  of  property. 

Apt  words  should  be  used  in  creating  a  trust,  and 

360 


TRUST   AND   TRUSTEE  361 

all  precatory  language  and  words  of  recommenda- 
tion and  confidence  should  be  avoided.  See  Hess 
v.  Singler,  114  Mass.  56,  59;  Aldrich  v.  Aldrich,  172 
Mass.  101,  103.  When  there  is  a  plain  intention  to 
create  a  trust,  it  must  be  sufficiently  defined  so  as  to 
be  carried  into  effect.  A  devise  or  bequest  to  A. 
'Ho  distribute  the  same  in  such  manner  as  in  his 
discretion  shall  appear  best  calculated  to  carry  out 
wishes  which  I  have  expressed  to  him  or  may  express 
to  him"  is  not  advisable.  See  Olliffe  v.  Wells,  130 
Mass.  221.  A  better  way  is  to  make  the  devise  or 
bequest  to  A.  an  absolute  one,  with  the  wish  that  he 
will  dispose  of  the  same  conformably  to  a  written 
request  which  is  to  be  hi  no  sense  a  part  of  the 
will. 

The  Statute  of  Uses,  27  Henry  VIII,  has  been 
repealed  in  some  States  and  is  still  in  force  in  not  a 
few.  Hence  in  the  last-named  States  the  word  "use " 
should  be  used  understandingly.  In  one  State  it 
has  been  held,  where  a  testator  gave  property  to  a 
party,  in  trust,  for  the  benefit  of  his  married  daughter, 
"to  her  sole  and  separate  use,  and  her  heirs  and  as- 
signs forever,"  that  the  devise  of  a  fee  to  the  daughter 
created  an  equitable  estate  during  coverture,  and  a 
legal  estate  afterward,  the  use  being  executed  upon 
the  termination  of  the  trust.  Richardson  v.  Stodder, 
100  Mass.  528. 

While  it  is  held,  as  a  general  rule,  that  every  kind 
of  property  capable  of  assignment  may  be  the  sub- 
ject-matter of  a  trust,  yet  it  would  seem  advisable 


362  TESTAMENTARY   FORMS 

in  most  cases  to  give  household  furniture  and  other 
property  of  that  nature  outright;  and,  as  already 
seen,  there  can  be  no  life  interest  in  things  necessarily 
consumed  by  their  use.  See  p.  160.  Property  like 
household  furniture,  plate,  etc.,  is  sometimes  given 
to  one  to  divide  among  others.  By  an  actual  will 
household  furniture,  plate,  etc.,  were  given  to  a 
person  with  the  provision  that  he  "  shall  have  an 
absolute  discretion  as  to  the  mode  of  such  division, 
and  that  any  division  made  by  him  shall  be  final 
and  conclusive  in  all  respects,  and  that  the  shares 
of  my  younger  sons  in  the  said  plate  shall  be  deliv- 
ered to  them  when  they  shall  respectively  attain 
the  age  of  twenty-one  years." 

It  is  often  difficult  to  determine  whether  the 
trust  extends  to  and  includes  real  estate.  Where 
trustees  are  directed  to  receive  and  apply  profits 
of  land  for  a  limited  time  only,  and  there  is  no 
express  limitation  of  their  estate,  they  take  a  legal 
estate  for  that  time,  and  no  longer. 

As  a  matter  of  practice,  this  question  frequently 
arises  where  the  homestead  is  devised  to  a  widow  for 
life,  and  certain  personal  estate  is  given  to  trustees 
for  her  benefit.  If  for  any  cause  it  is  deemed  advis- 
able to  sell  the  homestead,  it  is  often  difficult  to 
determine,  where  the  provisions  in  the  will  are  not 
clear,  whether  a  conveyance  can  be  made  without 
the  trustees  joining  therein. 

If  it  is  intended  that  the  trustee  shall  take  a  fee, 
proper  words  of  limitation  should  be  used  in  the 
will;  although  a  fee  will  be  implied  when  the  trust 


TRUST   AND   TRUSTEE  363 

is  of  such  a  nature  as  to  require  a  legal  estate  in 
the  trustee,  beyond  that  of  an  estate  for  his  own 
life. 

"In  this  deed  the  word  'heirs'  is  not  used,  al- 
though almost  every  other  word  is  found,  which  is- 
usually  adopted  in  a  deed  intended  to  convey  an 
entire  estate  in  fee.  The  general  rule  of  law  is,  that 
both  in  a  deed  and  in  a  will  the  word  'heirs'  is 
necessary  to  vest  a  fee-simple  in  the  devisee  or 
grantee,  being  a  natural  person,  though  the  rule  is 
more  flexible,  and  more  readily  relaxed,  in  a  devise 
than  in  a  deed. 

"But  the  rule  itself  is  subject  to  several  exceptions; 
and  one  as  well  established  as  the  rule  itself  is,  that 
when  the  conveyance  is  in  trust,  and  the  trusts  are 
of  such  a  nature  that  they  do,  or  by  possibility  may, 
require  a  legal  estate  in  the  trustee,  beyond  that  of 
an  estate  for  his  own  life,  then,  without  words  of 
limitation  in  the  conveyance  to  the  trustee,  he  shall 
take  a  fee.  .  .  . 

"The  primary  object  of  such  a  conveyance  mani- 
festly is,  to  uphold  trusts  so  created,  and  to  secure 
to  the  respective  objects  of  them  the  benefits  in- 
tended; to  accomplish  this  purpose,  the  trustee  must 
have  a  legal  estate  coextensive  with  the  trusts;  a 
life  estate  is  insufficient,  an  estate  in  fee  is  neces- 
sary; and  therefore  the  implication  is  a  necessary 
one,  that  a  fee  was  intended  to  be  conveyed;  and 
this  intent  the  law  will  carry  into  effect,  by  holding 
the  estate  a  fee. 

"The  authorities  upon  this  subject  are  numerous 


364  TESTAMENTARY   FORMS 

and  decisive,  and  several  of  them  so  recent  .  .  . 
that  it  is  only  necessary  to  state  the  principle  and 
refer  to  them.  Gibson  v.  Montfort,  1  Ves.  Sen.  485; 
Gates  v.  Cooke,  3  Burr.  1684;  Fisher  v.  Fields,  10 
Johns.  495,  505;  Newhall  v.  Wheeler,  7  Mass.  189, 
198;  Stearns  v.  Palmer,  10  Met.  32,  35;  Gould  v. 
Lamb,  11  Met.  84;  Brooks  v.  Jones,  Ib.  191."  Cleve- 
land v.  Hallett,  6  Gush.- 403,  407. 

It  makes  perhaps  little  difference  that  the  prop- 
erty given  in  trust  is  without  the  limits  of  the 
testator's  domicile,  as  it  can  easily  be  turned  into 
available  assets.  But  difficult  questions  may  arise 
as  to  the  power  of  the  court  when  the  trustee  re- 
sides out  of  the  testator's  domicile. 

Sometimes  a  testator  creates  a  trust  of  all  that  he 
shall  leave  over  a  certain  amount,  say  $100,000. 
This  is  not  advisable,  for,  if  he  should  leave  only  a 
little  over  $100,000,  a  trust  of  a  trifling  amount 
would  be  created.  Better  fix  the  exact  amount  to 
be  given  in  trust. 

Before  giving  the  residue  in  trust,  ascertain 
if  there  is  realty  hi  a  jurisdiction  which  either 
forbids  the  creation  of  trusts  or  limits  them  in 
their  operation. 

The  rule  is  generally  stated  in  the  text-books, 
and  is  found  in  many  adjudged  cases,  that  no  lapse 
of  tune  is  a  bar  to  a  direct  trust;  and  it  is  undoubt- 
edly true,  if  taken  with  the  proper  qualifications. 
The  possession  of  the  trustee  not  being  adverse  to 
the  cestui  que  trust,  as  between  them  there  is  no 
limitation  of  time,  unless  there  is  a  clear  repudia- 


TRUST   AND    TRUSTEE  365 

tion  of  the  trust,  brought  home  to  the  party  so  as 
to  require  him  to  act  as  upon  a  clearly  asserted  ad- 
verse title.  Baker  v.  Whiting,  3  Sumner,  475,  486; 
Kane  v.  Bloodgood,  7  Johns.  Ch.  90.  But  where  the 
trustee  sells  the  trust  estate  to  a  purchaser  for  value, 
with  warranty,  and  without  any  intimation  in  the 
deed  of  conveyance  of  a  subsisting  trust,  and  the 
vendee  enters  and  occupies  the  estate,  doing  no  act 
which  recognizes  in  any  manner  the  existence  of  the 
trust,  and  there  is  no  fraud  or  concealment,  and  the 
cestui  que  trust  is  under  no  disability,  the  possession 
must  be  regarded  as  adverse  both  to  the  trustee  and 
the  cestui  que  trust;  and  the  tune  which  would  bar 
the  legal  right  is  equally  effectual  to  bar  the  equita- 
ble right.  2  Sugden  on  Vend.  610;  Attorney  Gen- 
eral v.  Proprietors  of  Federal  Street  Meeting-House, 
3  Gray,  1. 

II.   The  Trustee. 
1.   Who  may  be  a  Trustee. 

As  nearly  any  one  can  take  property  in  trust  for 
others,  the  selection  of  a  trustee  is  largely  a  matter 
of  sound  judgment  and  good  sense. 

It  often  happens  that  the  same  person  is  both 
remainder-man  and  trustee.  A  common  example  is 
where  one  is  given  property  in  trust  for  the  benefit 
of  another  of  the  same  family,  the  principal  to  be 
his  after  the  death  of  the  cestui  que  trust.  But  this 
is  an  unwise  provision,  especially  if  the  trustee  is 
authorized  to  add  a  part  or  all  of  the  income  to  the 


366  TESTAMENTARY   FORMS 

principal  fund;  because  it  will  be  to  his  advantage 
to  increase  the  capital  by  withholding  the  income. 
See  Williams  v.  Bradley,  3  Allen,  270,  281. 

It  is  obvious  that  in  most  cases  the  purposes  of 
a  trust  can  be  best  carried  out  when  there  is  no 
relationship  subsisting  between  the  trustee  and 
cestui  que  trust.  Wilson  v.  Wilson,  145  Mass.  490. 
It  is  said  in  England  that  the  worst  breaches  of 
trust  are  committed  by  those  trustees  who  are 
nearly  related  to  the  cestui  que  trust.  Wilding  v. 
Bolder,  21  Beavan,  222. 

A  testator  may  desire  to  insert  in  his  will  a  pro- 
vision like  the  following: 

While  I  desire  and  will  that  there  shall  never  be 
less  than  three  trustees  under  this  will,  I  also  par- 
ticularly declare  and  order  that  only  disinterested 
persons  shall  serve  as  trustees,  and  hence  I  exclude 
husbands,  wives  and  all  relatives  of  the  benefici- 
aries and  remainder-men. 

"It  is  one  of  the  primary  duties  of  a  trustee  to 
keep  the  funds  of  the  trust  separate  from  his  private 
funds,  and  not,  by  mingling  them  together,  to  ex- 
pose the  trust  funds  to  the  risks  to  which  his  own 
property  may  becbme  liable.  The  appellant  has  vio- 
lated this  duty,  and  by  his  own  statement  has  done 
so  deliberately  and  withholds  information  of  his  in- 
vestments from  the  cestuis  que  trust.  He  was  ex- 
empted by  the  will  from  giving  bonds,  and  they 
have  therefore  no  security  against  loss  through  his 


TRUST   AND   TRUSTEE  367 

malfeasance.  The  fact  that  he  is  their  father  and 
the  son  of  the  testator  affords  no  ground  of  excuse 
or  apology  for  his  breach  of  trust."  Sparhawk  v. 
Sparhawk,  114  Mass.  356,  358. 

In  most  jurisdictions  a  married  woman  may  be 
trustee,  but  infants  cannot  act  until  they  reach 
majority. 

An  alien  may  be  trustee  as  to  personalty,  but 
not  as  to  realty,  unless  he  is  authorized  by  law  to 
hold  it. 

A  non-resident  who  is  not  an  alien  may  be 
trustee,  but  he  would  probably  have  to  appoint 
an  agent  in  the  jurisdiction  of  the  trust  estate. 

A  city  may  act  as  trustee.  Webb  v.  Neal,  5 
Allen,  575. 

Trust  companies  are  generally  authorized  by  stat- 
ute to  be  trustees,  but  there  is  a  disadvantage  in 
the  fact  that  beneficiaries  and  remainder-men  do 
not  feel  freedom  in  consulting  with  corporations  as 
they  do  with  individuals. 

Savings  banks  are  authorized  in  some  States  to 
receive  money  on  deposit  in  trust  for  the  purpose 
of  setting  out  shade-trees  in  streets  and  parks,  and 
improving  the  same;  for  purchasing  land  for  parks, 
and  improving  the  same;  for  maintaining  ceme- 
teries or  cemetery  lots;  for  erecting  and  maintain- 
ing drinking-fountains  in  public  places. 

So  also  cemetery  corporations  are  authorized  to 
hold  funds  in  trust  for  their  improvement  or  the 
care  of  lots.  As  to  burial  lots  see  p.  81.  The  inten- 
tion to  name  a  person  as  trustee  in  his  "official 


368  TESTAMENTARY   FORMS 

capacity,"  as  the  mayor  of  a  city,  should  be  un- 
equivocally expressed.  See  Dunbar  v.  Soule,  129 
Mass.  284. 

Many  corporations  have  very  liberal  powers  as 
to  granting  annuities  on  lives  as  well  as 'those  in 
trust.  In  the  case  of  an  annuity  on  a  life  a  large 
interest  is  allowed  during  the  annuitant's  life,  es- 
pecially if  at  an  advanced  age,  and  at  death  the 
capital  becomes  absolutely  the  property  of  the 
company.  Where  the  testator  only  desires  to  pro- 
vide for  a  child  or  other  person  during  life,  without 
remainder  over,  and  the  amount  of  the  proposed 
bequest  is  small,  it  is  often  advisable  to  direct  the 
executor  to  purchase  such  an  annuity  upon  the  life 
of  the  annuitant. 

A  form  like  the  following  is  suggested: 

I  constitute  and  appoint  my  daughter  A.  B.  the 
executrix  of  this  will,  release  her  from  giving  a 
surety  or  sureties  upon  her  official  bond  and  give 
her  full  power  and  authority  to  sell  both  real  and 
personal  estate  by  public  auction  or  by  private 
sale,  and  transfer  and  convey  the  same  by  deeds 
and  other  instruments  sufficient  to  pass  a  valid  title 
thereto.  I  give,  devise  and  bequeath  to  my  said 
daughter  A.  B.  all  my  estate,  both  real  and  per- 
sonal, wherever  the  same  may  be  situated  and  of 
whatever  the  same  may  consist,  to  have  and  to  hold 
to  her  and  her  heirs  and  assigns  forever.  I  em- 
phatically urge  my  said  daughter  after  she  has  paid 
all  my  debts  and  has  settled  her  account  hi  the 


TRUST   AND   TRUSTEE  369 

Probate  Court  to  turn  my  entire  estate,  with  the 
exception  of  personal  effects,  furniture,  etc.,  into 
cash  and  expend  the  same  hi  the  purchase  of  an 
annuity  from  some  sound,  stable  insurance  com- 
pany. I  mean  by  the  purchase  of  an  annuity  the 
entering  into  a  stipulation  whereby  she  will  part 
forever  with  the  funds  paid  by  her  to  such  company 
in  consideration  of  the  company's  paying  her  dur- 
ing life  a  certain  sum  per  annum. 

Another  form  may  be  found  on  p.  443. 

If  the  testator  by  his  will  has  not  placed  his 
property  in  trust  with  any  other  trustee  than  the 
executor,  it  is  the  province  and  duty  of  the  latter 
in  many  jurisdictions  to  act  as  trustee. 

The  better  way  is  to  positively  appoint  the  same 
person  both  executor  and  trustee.  In  such  case  he 
must  give  bond  in  his  capacity  as  trustee.  Prior  v. 
Talbot,  10  Cush.  1. 

"The  fact  that  the  same  persons  are  executors 
and  trustees  enables  the  individuals  clothed  with 
this  double  character  to  act  hi  the  two  capacities 
with  more  ease  and  safety  than  they  otherwise 
could.  As  the  funds  are  at  all  tunes  under  their 
own  control,  either  in  the  one  capacity  or  the  other, 
then,  under  the  rule  that  the  law  considers  that 
paid  which  it  requires  to  be  paid,  nothing  remains 
for  the  executors  and  trustees  to  do  but  to  keep 
accurate  accounts,  to  charge  and  credit  the  one 
fund  or  the  other,  according  to  every  possible  con- 
tingency, with  moneys  received  and  debts  and 


370  TESTAMENTARY   FORMS 

charges  paid;  and  when  the  executorship  account 
is  closed,  and  the  statute  of  limitations  has  taken 
effect,  then  the  trust  account  will  exhibit  the  trust 
fund,  as  directed  to  be  formed  by  the  will."  Minot 
v.  Amory,  2  Gush.  377,  385,  386. 

"The  residence  of  the  trustee  and  cestuis  que  trust 
out  of  the  Commonwealth  does  not  take  away  the 
power  of  this  court  to  regulate  and  control  the 
proper  administration  of  trust  estates  which  are 
created  by  wills  made  by  citizens  of  this  State,  and 
which  have  been  proved  and  established  in  the 
courts  of  this  Commonwealth.  The  legal  existence 
of  the  trust  takes  effect  and  validity  from  the  proof 
of  the  will,  and  the  right  of  the  trustee  to  receive 
the  trust  fund  is  derived  from  the  decree  of  the 
Probate  Court."  Chase  v.  Chase,  2  Allen,  101, 
104.  As  to  a  non-resident  trustee,  see  Loring's 
A  Trustee's  Handbook  (3d  ed.),  18  and  192.  A 
trustee  may  be  liable  as  stockholder. 

The  residence  of  the  trustee  and  the  cestui  que 
trust  in  some  cases  would  determine  the  taxation  of 
personal  property  held  in  trust. 

2.    The  Bond  and  Liability  Thereon. 

Reference  may  be  had  to  notes  above  on  the  ex- 
ecutor's bond  and  liability  thereon.  See  pp.  321 
et  seq.  As  to  releasing  trustees  from  giving  sure- 
ties, see  forms  on  pp.  314  et  seq.  Forms  are  also  given 
in  Appendix  I. 


TRUST   AND   TRUSTEE  371 

3.    The  Compensation  of  Trustees. 

Much  which  has  been  said  about  the  compensa- 
tion of  executors  applies  to  trustees.  See  pp.  325 
et  seq. 

In  some  States  five  per  cent  upon  the  gross  amount 
of  income  collected  is  allowed,  and  the  trustee  is 
also  allowed  from  one  to  two  and  a  half  per  cent 
(according  to  the  duration  of  the  trust)  upon  the 
gross  amount  of  the  principal  conveyed  by  him  to 
the  remainder-men  upon  the  termination  of  the 
trust. 

A  testator  may  desire  to  give  special  directions, 
as  in  the  following  forms: 

COMPENSATION  OF  TRUSTEES. 

I  direct  that  my  trustees  shall  receive  in  full  as 
compensation  for  their  services  five  per  cent  upon 
the  gross  amount  of  income  collected  by  them,  and, 
upon  the  termination  of  the  trust,  such  percentage 
of  the  gross  amount  of  the  principal  as  the  court 
may  deem  just  and  fair,  provided  the  trustees  and 
those  entitled  to  the  principal,  discharged  of  the 
trust,  are  not  able  to  agree  thereon. 

I  direct  that  my  trustees  shall  receive  fair  com- 
pensation according  to  the  services  rendered  by 
them. 

When  the  same  person  is  both  guardian  and 
trustee  it  is  probable  that  he  would  not  be  allowed 


372  TESTAMENTARY   FORMS 

to  charge  full  compensation  in  both  capacities  for 
the  same  service. 

When  a  lawyer,  acting  as  trustee,  has  occasion  to 
perform  professional  services  in  behalf  of  his  trust, 
his  charges  should  be  carefully  scrutinized  in  order 
to  determine  their  reasonableness  or  the  propriety 
of  the  service. 

The  testator  may  express  his  wishes  as  in  the  fol- 
lowing forms: 

I  direct  that  my  trustee  shall  receive  liberal  com- 
pensation for  his  labors,  and  such  amount  in  addi- 
tion thereto  for  professional  services  as  is  just  and 
reasonable. 

I  direct  that  my  trustee  shall  be  well  paid  as  such, 
but  shall  receive  no  compensation  for  any  services 
he  may  render  the  estate  as  attorney. 

Other  forms  are  given  on  pp.  325-327. 

In  specially  providing  in  his  will  as  to  the  com- 
pensation of  the  guardian  or  trustee,  it  is  advisable 
for  the  testator,  in  giving  a  legacy,  to  show  the 
intention  as  to  whether  the  same  is  given  as  a 
mark  of  personal  regard,  or  only  on  condition  that 
the  guardian  or  trustee  shall  qualify  as  such.  See 
p.  172. 

A  trustee  may  make  a  valid  agreement  with  his 
cestui  que  trust  as  to  the  amount  he  shall  receive  for 
his  services,  provided  the  cestui  que  trust  is  sui  juris 


TRUST   AND   TRUSTEE  373 

and  competent  to  act,  and  no  fraud  is  practised 
upon  or  undue  advantage  taken  of  him.  Bowker  v. 
Pierce,  130  Mass.  262. 

4.  The  Number  and  Appointment  of  Trustees  to 
Fill  Vacancies. 

In  regard  to  the  number  of  trustees,  it  should  be 
noted  that  if  there  are  more  than  one,  and  one  dies 
or  becomes  incapable  of  acting,  the  court  should 
appoint  a  co-trustee  to  act  with  the  survivor  or  sur- 
vivors, provided  that  the  will  is  silent  on  the  sub- 
ject. The  property  generally  vests  in  the  survivor, 
or  in  one  trustee  appointed  in  the  place  of  two,  until 
another  is  appointed  by  the  court.  Dixon  v.  Homer, 
12  Gush.  41. 

Ample  provision  is  made  by  statute  in  nearly  all 
jurisdictions  for  the  appointment  of  a  trustee  in 
the  place  of  one  who  dies,  resigns,  etc.,  and  for  the 
vesting  of  the  trust  estate  in  him  on  his  giving  bond. 
And  as  the  proceedings  in  the  Probate  Court  are 
simple  and  comparatively  inexpensive,  it  would 
seem  to  be  better  in  most  cases  not  to  provide  in 
the  will  for  the  appointment  of  new  trustees,  but  to 
leave  the  matter  to  the  court.  But  if  the  testator 
directs  that  the  judge  of  probate  shall  approve  of 
the  appointment  of  a  trustee,  to  be  made  by  per- 
sons designated  by  his  will,  the  person  occupying 
the  office  of  judge  of  probate  will  act  under  author- 
ity conferred  upon  him  by  the  will,  and  not  as  a 
court  or  judicial  officer;  and  notice  to  the  parties  in 


374  TESTAMENTARY   FORMS 

interest  will  not  be  required.  Shaw  v.  Paine,  12 
Allen,  293. 

As  to  the  advisability  of  a  provision  for  relin- 
quishment  of  and  for  filling  vacancies  in  the  case  of 
a  public  charity,  see  p.  455. 

Notwithstanding  what  has  just  been  said,  it  is 
declared  by  many  writers  that  where  the  trust  is  to 
continue  for  any  length  of  time  the  will  should  con- 
tain provisions  for  the  relinquishment  of  the  trust 
by  the  trustees  and  for  filling  vacancies  occasioned 
thereby.  There  will  be  found  in  1  Perry  on  Trusts, 
§  288,  n.,  a  power  for  the  appointment  of  new 
trustees,  which  is  approved  by  both  Mr.  Lewin  and 
Mr.  Hill. 

The  following  forms  are  largely  taken  from  actual 
wills.  It  has  already  been  said  that  statutes  gener- 
ally provide  for  the  vesting  of  the  trust  estate  in 
the  new  trustee,  but  it  can  do  no  harm  to  insert  in 
the  form  that  upon  the  appointment  of  such  new 
trustee  the  title  to  the  trust  estate  shall  vest  in  him 
jointly  with  the  acting  trustees,  and  no  conveyance 
or  conveyances  shall  be  necessary. 

FILLING  VACANCIES,  ETC. 

Each  of  said  trustees  shall  have  the  right  to  nomi- 
nate and  appoint  his  successor  by  last  will,  and  such 
successor  shall  have  the  same  powers  as  his  appointer. 

I  authorize  and  empower  the  persons  hereinafter 
named  as  executors  and  executrix  of  this  will,  or  a 
majority  of  such  of  them  as  shall  from  time  to  time 


TRUST   AND   TRUSTEE  375 

be  living,  by  an  instrument  in  writing  executed 
under  their  hands  and  seals  and  acknowledged  in 
like  manner  as  a  deed  to  be  recorded,  to  revoke  the 
appointment  of  trustee  of  any  or  all  of  the  trusts  in 
and  by  this  will  created,  and  to  appoint  any  person, 
or  persons,  resident  or  non-resident  of  this  State 
including  any  foreign  or  domestic  corporation  hav- 
ing power  by  its  charter  to  execute  trusts,  to  be 
trustee  of  any  of  said  trusts  in  respect  to  which  such 
power  of  revocation  shall  be  exercised  and  from 
time  to  tune  such  appointments  to  revoke,  and 
again  a  new  trustee  or  trustees  to  appoint.  But  the 
power  to  appoint  new  trustees  hereby  given  shall 
not  be  construed  to  authorize  the  appointment  of 
any  of  the  persons  named  in  this  will  as  executors 
or  executrix  to  be  such  new  trustee. 

Whenever  the  number  of  the  trustees  of  a  trust 
created  by  this  my  will  shall,  by  death,  resignation, 
incapacity  or  any  other  cause  be  less  than  three,  I 
authorize  the  remaining  trustee  or  trustees  by  deed 
to  appoint  a  new  trustee  or  trustees  so  as  to  keep 
the  number  at  not  less  than  three,  and  to  execute 
such  instruments  as  may  be  necessary  to  vest  the 
trust  estate  in  the  new  trustee  or  trustees  jointly 
with  the  remaining  trustee  or  trustees. 

I  declare  that  any  vacancy  or  vacancies  occurring 
in  any  trusteeship  under  my  will  by  death  in  my 
lifetime  or  afterwards,  disclaimer,  resignation,  resi- 
dence abroad,  refusal  to  act,  or  incapacity  may  be 


376  TESTAMENTARY   FORMS 

supplied  by  the  trustee  or  trustees  for  the  time 
being,  including  any  retiring  or  disclaiming  trustee 
or  trustees,  if  willing  to  act,  or,  if  there  be  no  trustee 
willing  to  act,  by  the  acting  executors  or  adminis- 
trators of  the  person  who  shall  have  last  died  in  the 
trust,  or,  H  there  be  no  such  person,  by  my  acting 
executors  or  administrators,  every  such  appoint- 
ment to  be  made  by  any  attested  writing,  and  it 
shall  not  be  necessary  to  supply  all  the  vacancies  at 
the  same  tune;  nevertheless  it  is  my  desire  that  so 
far  as  may  be  consistent  with  convenience  there  be 
always  two  trustees  of  my  will;  and  I  declare  that 
every  instrument  purporting  to  be  made  in  pur- 
suance of  the  foregoing  power,  and  not  appearing  on 
the  face  of  it  to  be  invalid,  shall,  though  not  so 
made,  be  valid  for  all  purposes,  and  that  every 
trustee  appointed  under  this  power  shall  imme- 
diately have  all  the  powers  of  a  trustee,  although 
the  trust  property  be  not  then  vested  in  him,  and 
that  the  trustees  or  trustee  for  the  tune  being  of  my 
will  may  exercise  any  power  or  discretion  hereby 
given  to  the  trustees  herein  named. 

In  all  cases  where  trustees  are  appointed  in  this 
will,  if  any  of  said  trustees  shall  after  my  death  die, 
or  be  unwilling  to  accept  or  to  execute  the  trust 
conferred  upon  them,  or  at  any  time  shall  desire 
to  retire  from  the  office,  it  shall  be  lawful,  when  other 
direction  or  appointment  is  not  herein  made,  for 
the  competent  acting  trustees  or  trustee  in  each 
of  such  trusts  respectively,  to  substitute  by  writing 


TRUST  AND   TRUSTEE  377 

any  persons  or  person  in  whom,  either  alone  or,  as 
the  case  may  be,  jointly  with  any  surviving  or  con- 
tinuing trustees  or  trustee,  the  trust  estate  and 
trust  powers  shall  forthwith  vest. 

In  the  event  that  any  of  the  trustees  appointed 
under  this  my  will  shall  die  before  the  said  trusts 
be  fully  executed,  or  desire  to  renounce  the  trust  or 
become  disqualified  from  acting  as  such  trustee,  I 
authorize  and  empower  the  surviving  or  remaining 
trustees  or  trustee,  should  they  deem  it  advisable  and 
for  the  best  interests  of  my  estate,  by  suitable  in- 
strument, executed  by  them  jointly  if  there  be  more 
than  one  and  duly  acknowledged,  appoint  a  suitable 
person  to  become  a  trustee  in  the  place  of  him  or  her 
so  dying,  renouncing  or  becoming  disqualified,  and 
said  newly  appointed  trustee  shall  become  associated 
in  or  succeed  to  the  said  trusts  in  like  manner  and 
with  the  same  powers  as  if  originally  named  for 
that  purpose  in  this  my  will. 

I  desire  that  the  number  of  trustees  for  the 
execution  of  the  trust  provided  herein  shall  not  be 
less  than  three  (3);  and  whenever  the  number  of 
said  trustees  shall  be  reduced  to  two  (2)  by  death, 
resignation,  unwillingness  to  serve,  or  other  dis- 
qualification, it  shall  be  lawful  for  the  remaining 
trustees  or  trustee  for  the  time  being  to  substitute 
by  an  instrument  in  writing  any  person  or  persons 
in  whom  jointly,  with  any  surviving  and  continuing 
trustees  or  trustee,  my  trust  estate  shall  vest  or  by 


378  TESTAMENTARY   FORMS 

proper  assurances  be  vested,  and  in  case  any  trustee 
so  appointed  shall  not  be  a  beneficiary,  sharing  in 
the  distribution  under  the  trust  hereby  created,  the 
trustees  making  such  appointment  may  direct  a 
reasonable  compensation  to  be  paid  to  any  such  new 
trustee  for  services  rendered  in  such  trust,  and  a 
corporation  lawfully  authorized  to  execute  such 
trust  may  be  one  of  said  trustees. 

In  the  event  that  the  said  A.  B.  shall  cease  to  be  a 
trustee  under  my  will,  then  it  is  my  will  and  I  direct 
that  within  ninety  (90)  days  after  such  vacancy 
shall  occur,  the  vacancy  in  the  trusteeship  so  occur- 
ring shall  be  filled  by  an  appointment  made  by  the 
remaining  trustees  or  trustee  under  my  will  by  an 
instrument  in  writing  appointing  a  successor  in  trust, 
in  whom,  jointly  with  the  surviving  and  continuing 
trustees  or  trustee,  the  trust  estate  shall  vest  or  by 
proper  assurances  be  vested.  And  in  case  any  trustee 
so  appointed  shall  not  be  a  beneficiary  sharing  in 
the  distribution  under  the  trust  hereby  created,  the 
trustees  making  such  appointment  may  direct  a 
reasonable  compensation  to  be  paid  to  any  such 
new  trustee  for  services  rendered  in  such  trust. 
And  in  like  manner  any  vacancy  occurring  thereafter 
in  the  trusteeship  held  by  the  said  A.  B.  shall  be 
filled  from  tune  to  tune,  so  that  there  shall  at  all 
times  be  a  successor  hi  trust  to  the  said  A.  B.  during 
the  continuance  of  the  trust  under  my  said  will. 
Provided,  however,  that  the  first  successor  hi  trust 
to  the  said  A.  B.  shall  be  C.  D.  of  the  city  of, 


TRUST  AND   TRUSTEE  379 

etc.,  if   he   shall   be   living  and   willing  to  accept 
said  trust. 

Each  of  my  daughters  may  select  as  trustee  for 
herself  and  her  children  under  the  foregoing  provi- 
sions either  my  son  J.  L.,  or  the  Equity  Trust  Com- 
pany of,  etc.,  but  should  either  of  my  daughters  for 
any  reason  fail  to  declare  her  preference,  then  I  ap- 
point my  son  J.  L.,  to  be  the  trustee  for  the  one  so 
failing  and  for  her  children. 

I  declare  that  if  any  one  or  more  of  the  trustees 
hereby  constituted  shall  die  in  my  lifetime  or  if  any 
one  or  more  of  them  or  of  the  trustees  or  trustee 
appointed  as  hereinafter  provided  shall  after  my 
death  die  or  be  abroad  elsewhere  than  in  America 
for  twelve  calendar  months  consecutively  or  desire 
to  be  discharged  or  refuse  or  become  incapable  to 
act  so  that  the  number  of  acting  trustees  shall  be 
reduced  below  three,  then  and  in  every  such  case 
the  surviving  or  continuing  trustees  or  trustee  for 
the  time  being  (and  for  this  purpose  every  refusing 
or  retiring  trustee  shall  if  willing  to  act  in  the  execu- 
tion of  this  power  be  considered  a  continuing  trustee) 
or  the  acting  executors  or  executor  administrators 
or  administrator  of  the  last  surviving  and  continuing 
trustee  shall  appoint  a  new  trustee  or  new  trustees 
in  the  place  of  the  trustee  or  trustees  so  dying  or 
being  abroad  or  desiring  to  be  discharged  or  refusing 
or  becoming  incapable  to  act  as  aforesaid.  And  upon 
every  or  any  such  appointment  as  aforesaid  the 


380  TESTAMENTARY   FORMS 

number  of  trustees  may  be  augmented  or  reduced 
and  if  so  augmented  may  be  again  reduced  below 
three,  my  will  being  that  there  shall  always  be  at 
least  three  acting  trustees  of  this  my  will  and  upon 
every  such  appointment  the  trust  property  shall  if 
and  so  far  as  the  nature  of  the  property  or  circum- 
stances shall  require  or  admit  be  transferred  so  that 
the  same  may  be  vested  in  the  trustees  for  the  time 
being,  and  every  trustee  so  appointed  as  aforesaid 
may  as  well  before  as  after  such  transfer  of  the  said 
trust  property  act  or  assist  in  the  execution  of  the 
trusts  and  powers  of  this  my  will  as  fully  and  effectu- 
ally as  if  I  had  hereby  constituted  him  a  trustee. 

I  declare  and  direct  that  the  number  of  trustees 
under  the  trusts  created  by  this  will  shall  always 
be  three,  but  the  two  continuing  trustees  shall  have 
authority  to  execute  all  the  powers  and  discharge 
all  the  duties  relative  to  said  trusts  until  a  new 
trustee  is  appointed;  and  every  such  new  trustee 
shall  have  the  rights,  powers,  discretions  and  author- 
ity of  an  original  trustee. 

If  my  said  son  at  his  death  shall  be  the  sole  con- 
tinuing trustee  under  said  trusts  it  shall  be  lawful  for 
him  by  his  last  will  and  testament  to  appoint  a  new 
trustee  or  new  trustees  to  succeed  him  thereunder. 

If  a  vacancy  occurs  in  the  office  of  trustee  for 
any  cause,  a  new  trustee  or  successor  shall  be  selected 
by  a  majority  vote  of  the  incumbent  or  remaining 


TRUST   AND   TRUSTEE  381 

trustees,  each  trustee  to  have  one  vote.  A  writing 
setting  forth  such  selection  shall  be  drawn  up  and 
signed  by  those  casting  a  majority  of  votes  and 
shall  then  be  recorded  in,  etc. 

It  is  suggested  that  where  there  are  two  or  more 
trustees,  a  provision  should  be  inserted  hi  the  will 
recommending  that  a  record  be  kept  of  the  transac- 
tions at  every  meeting.  See  p.  353. 

5.  Power  to  Sell,  Mortgage,  Lease,  Invest,  and  Re- 
invest, etc. 

If  the  will  gives  the  trustee  no  power  to  sell,  invest, 
and  reinvest,  an  order  for  that  purpose  may  be 
obtained  from  the  court. 

Nearly  all  well-drawn  wills,  however,  contain  such 
a  power,  and  the  directions  as  to  tune,  manner, 
and  kind  of  investments  must  be  implicitly  followed. 
And  if  the  administration  of  the  trust  is  confided  to 
the  wise  discretion  of  the  trustees,  the  court  will  not 
interfere,  if  that  discretion  is  reasonably  and  fairly 
exercised. 

In  regard  to  wording  of  powers  to  sell,  mortgage, 
lease,  etc.,  and  the  laws  applying  thereto,  the  same 
rules  apply  as  in  the  case  of  executors.  See  pp.  333 
et  seq.  In  addition  to  the  forms  there  given  and  forms 
to  be  found  on  pp.  511,  522,  572,  586,  the  following 
is  offered: 

I  hereby  authorize  and  empower  my  said  trustees 
and  their  successors  in  trust  in  their  discretion,  from 


382  TESTAMENTARY   FORMS 

time  to  time,  to  sell,  mortgage,  lease  and  convey 
upon  such  terms  as  they  may  deem  best  any  or  all 
of  the  real  and  personal  estate  belonging  to  the 
trust  and  reinvest  the  proceeds  in  investments, 
suitable  and  proper  for  trustees  to  invest  in,  and 
the  same  shall  be  part  of  the  principal  of  the  trust 
estate  and  be  subject  to  all  the  provisions  thereof. 
And  I  authorize  said  trustees  and  their  successors 
to  execute,  acknowledge  and  deliver  any  and  all 
legal  instruments  in  writing  which  may  be  required 
to  execute  the  above  powers  conferred  upon  them; 
and  no  purchaser  from  said  trustees  or  their  succes- 
sors shall  be  required  to  see  to  the  application  of  the 
purchase  money.  The  receipts  of  my  said  trustees 
for  any  moneys  paid  to  them  shall  be  an  absolute 
discharge  to  the  person  or  persons  paying  the  same 
and  such  person  or  persons  shall  not  be  required  to 
see  to  the  application  thereof. 

A  power  to  partition  is  frequently  conferred  upon 
trustees,  as  in  the  following  forms: 

POWER  TO  PARTITION. 

I  hereby  authorize  my  trustees  to  make  partition 
of  any  real  estate  which  at  the  time  of  my  decease  I 
may  hold  in  common  with  others,  and  to  this  end 
they  may  determine  valuations,  and  arrange  terms 
and  details,  make  payments  to  secure  equality, 
execute  and  deliver  necessary  deeds  or  other  in- 
struments, and  take  in  their  own  names  as  trustees 
title  to  the  real  estate  allotted  to  them. 


TRUST   AND   TRUSTEE  383 

I  hereby  confer  upon  my  executors  absolute 
power  and  authority  to  partition  and  divide  in 
severalty  the  real  property  devised  in  this  will  at 
the  appraised  valuations  thereof  and  allot  the  same 
to  and  among  the  trust  estates  herein  created. 

Another  form  is  given  on  p.  440. 

It  is  a  general  rule  that  the  testator  may  give 
such  directions  as  to  investments  as  he  deems  best, 
in  the  absence  of  which  executors,  trustees,  and 
guardians  must  invest  in  property  recognized  as 
suitable  for  them  to  invest  in  and  located  within 
their  own  jurisdiction.  This  is  said  to  be  the  rule 
in  a  few  jurisdictions  even  where  the  will  gives  the 
trustees  discretion  as  to  investments.  See  1  Perry 
on  Trusts,  §  460.  In  many  States  trustees  are 
limited  by  statute  to  specified  investments,  and  in 
a  few  they  are  authorized  to  make  any  investments 
provided  they  act  in  good  faith  and  exercise  sound 
discretion.  The  rule  that  a  trustee  is  protected,  if 
he  takes  the  same  care  of  the  trust  property  which 
he  takes  of  his  own,  is  no  longer  followed,  and  the 
rule  that  he  is  protected,  if  he  takes  the  same  care 
of  the  trust  property  which  a  prudent  man  would 
take  of  his  own,  is  unsound  and  unsafe. 

Many  testators  give  explicit  instructions  as  to 
investments,  as  (a)  that  the  testator's  business  be 
continued  by  the  trustees  for  a  period  sufficiently  long 
for  liquidation,  and  that  the  proceeds  be  then  invested 
in  sound  securities;  (b)  that  the  trustees  invest  in 
specified  property  not  generally  regarded  as  legally 


384  TESTAMENTARY   FORMS 

proper  for  trustees  to  invest  in;  (c)  that  the  trustees 
invest  in  specified  property  whether  suitable  or  not 
for  trustees  to  invest  in;  (d)  that  all  or  a  part  of  the 
testator's  investments,  as  existing  at  the  tune  of  his 
decease,  shall  be  continued  in  the  trust.  As  to  the 
insertion  of  clauses  relieving  trustees  from  liability, 
see  p.  324. 

If  a  testator  proposes  to  insert  a  provision  that  the 
trustee  is  only  authorized  to  invest  in  certain  desig- 
nated bonds,  such  as  those  of  cities,  towns,  counties, 
railroads,  etc.,  and  the  trust  is  likely  to  be  of  long 
duration,  his  attention  should  be  called  to  the 
probability  of  lower  rates  of  interest.  Many  regard 
bank  and  trust  company  shares  as  improper  invest- 
ments on  account  of  double  liability. 

The  following  forms  are  offered: 

AUTHORITY  TO  INVEST  IN  SPECIFIED  PROPERTY. 

I  authorize  and  empower  my  trustees  and  their 
successors  to  invest  and  reinvest  the  trust  estates 
created  by  this  will  from  time  to  time,  without 
obtaining  the  approval  or  authority  of  any  court, 
in  the  stock  of  sound  and  conservatively  managed 
banks,  in  the  stock  or  bonds,  or  both,  of  other  stable 
financial  institutions,  reliable  railroads,  public  service 
corporations,  industrial  and  manufacturing  estab- 
lishments, unproved  and  productive  real  estate,  and 
mortgages  secured  by  real  estate  or  personal  prop- 
erty, the  loan  in  every  case  to  be  not  more  than 
one-half  the  value  of  the  security.  My  trustees  are 
not  to  be  held  responsible  for  any  losses  resulting 


TRUST   AND   TRUSTEE  385 

from  any  investments  they  may  make  in  the  above- 
permitted  securities  and  property,  provided  they 
exercise  a  sound  discretion  and  act  in  good  faith. 

AUTHORITY  TO  INVEST  IN  CERTAIN  BONDS  OF 
STATES  AND  CITIES  AND  IN  REAL  ESTATE. 

I  direct  my  trustee  and  his  successor  or  successors 
in  that  capacity  to  invest  and  reinvest  the  trust 
estate  in  the  bonds  of  the  States  of  Ohio,  Illinois, 
New  York,  Massachusetts,  Pennsylvania,  New  Jersey 
and  Connecticut,  of  the  cities  of  New  York,  Boston 
and  Philadelphia,  and  sound,  dividend  paying  rail- 
roads in  any  of  the  States  aforesaid,  and  in  improved 
real  estate  and  safe  mortgages  upon  the  same  in  any 
of  the  States  above-named. 

CERTAIN  INVESTMENTS  FAVORED,  BUT  ANY  IN- 
VESTMENTS APPROVED  BY  TRUSTEES  AND  BENEFI- 
CIARIES ALLOWED. 

I  particularly  favor  as  investments  for  the  trust 
estate  created  by  this  will  the  public  debt  and 
securities  of  the  United  States,  of  the  States  which 
have  the  largest  amount  of  taxable  property,  of 
cities  in  such  States,  the  first  mortgage  bonds  of 
sound  railroads  in  the  United  States  and  safe  loans 
with  any  of  the  above-named  securities  as  collateral. 
However,  I  authorize  and  empower  my  trustees  to 
invest  in  any  other  securities  or  property,  which 
they  and  the  beneficiaries  and  remainder-men  of  the 
trust  shall  approve  and  select. 


386  TESTAMENTARY  FORMS 

AUTHORITY  TO  INVEST  IN  RAILROAD  BONDS  OR 
OTHER  SAFE  PROPERTY. 

I  direct  my  trustees  to  invest  and  reinvest  the  trust 
funds  in  the  bonds  or  stock  of  railway  companies 
in  the  United  States,  which  have  paid  regular 
dividends  upon  the  capital  stock  for  a  period  of 
three  years  preceding  the  time  of  such  investment, 
but  they  may  also  invest  not  more  than  one-third 
of  the  trust  funds  in  any  other  property  which  they 
deem  sound  and  reliable,  looking  always  to  the 
safety  of  the  security  rather  than  to  high  rates  of 
interest. 

GENERAL  AUTHORITY  TO  INVEST. 

Having  given  my  said  trustees  ample  power  of 
sale  in  order  to  vary  investments,  I  now  authorize 
them  to  purchase  any  safe  property  the  same  as  I 
would  do  if  living,  but  I  caution  them  in  investing 
on  mortgage  to  take  a  first  mortgage  not  exceeding 
in  amount  one-half  the  assessed  valuation  of  the 
real  estate,  and  in  investing  in  railway  securities  to 
select  only  the  securities  of  railways  which  have 
paid  regular  dividends  on  all  their  capital  stock  for  a 
period  of  five  years  preceding  such  investment.  I 
also  authorize  them  to  retain  any  investments  made 
by  me,  which  may  come  to  them  as  a  part  of  the 
trust  estate.  I  require  that  not  over  twenty  per 
cent  of  the  trust  estate  shall  be  invested  in  any  one 
kind  of  security  or  property. 


TRUST  AND  TRUSTEE  387 

GENERAL  AUTHORITY  TO  HOLD  INVESTMENTS  AND 
REINVEST. 

I  authorize  and  direct  my  trustees  and  their  suc- 
cessors to  continue  to  hold  as  part  of  the  trust  estate 
all  property  real  or  personal  owned  by  me  at  the 
time  of  my  death  and  which  may  be  conveyed  by 
my  executors  to  them,  the  said  trustees,  although 
some  or  even  all  of  such  property  may  be  of  a  kind 
regarded  as  not  suitable  for  trustees  to  invest  in, 
and  I  also  authorize  and  direct  them  to  invest  the 
funds  of  the  estate  from  time  to  tune  in  any  securities 
or  property,  which  trustees  are  allowed  to  invest  in, 
and  in  the  purchase  of  and  loans  upon  national, 
state,  city,  town,  county  and  railway  bonds,  and 
also  improved  and  unincumbered  real  estate,  wher- 
ever situated. 

AUTHORITY  TO  RETAIN  SOUND  TRUST  INVEST- 
MENTS, SELL  OTHERS  AND  REINVEST  IN  TRUST 
PROPERTY. 

When  my  executors  turn  over  the  residuum  of  my 
estate,  which  constitutes  this  trust,  I  authorize  and 
empower  my  trustees  to  retain  those  securities, 
assets  and  properties,  which  are  suitable  for  trustees 
to  invest  in  and  to  sell  the  balance  of  the  residuum 
so  turned  over  to  them  and  reinvest  the  proceeds 
in  property  suitable  for  trust  estates. 


388  TESTAMENTARY  FORMS 

ONE  HALF  OF  TRUST  TO  BE  INVESTED  IN  REALTY 
AND  THE  OTHER  HALF  IN  FIRST  MORTGAGES. 

I  especially  authorize,  order  and  direct  my 
trustees  and  their  successors  to  invest  one  half  of 
the  trust  estate  in  improved  and  productive  real 
estate  and  the  other  half  in  first  mortgages  upon 
improved  and  productive  real  estate,  the  mortgage 
in  each  case  to  be  not  over  fifty  per  cent  of  the  as- 
sessed valuation  of  the  property  upon  which  the 
mortgage  is  taken.  I  caution  my  said  trustees  to 
look  carefully  to  the  titles  in  all  cases,  and  neither 
to  purchase  nor  loan  on  incumbered  real  estate. 

AUTHORITY  TO  INVEST  IN  GOOD  FAITH  AND  WITH 
SOUND  DISCRETION. 

I  authorize  my  trustees  to  invest  the  trust  funds 
in  any  property,  real  or  personal,  they  may  select 
and  do  not  hold  them  answerable  for  any  losses 
occasioned  by  any  investments  they  may  make, 
provided  they  exercise  sound  discretion  and  act  in 
good  faith. 

REINVESTMENTS. 

While  my  trustee  in  making  reinvestments  is  to 
seek  only  properties  suitable  and  proper  for  trus- 
tees to  invest  in,  yet  even  then  I  direct  that  he 
must  as  a  condition  precedent  to  making  such  re- 
investments obtain  the  approval  in  writing  of  the 
beneficiary. 


TRUST   AND   TRUSTEE  389 

Other  forms  are  given  on  pp.  511,  547,  551,  572, 
583,  591. 

Authority  is  often  conferred  upon  trustees  as  to 
erecting  buildings  and  making  improvements,  al- 
though such  authority  would  probably  come  within 
a  general  power  as  to  investing  and  reinvesting  the 
trust  estate  in  realty  as  well  as  personalty. 

The  following  form  may  be  used: 

If  my  trustees  shall  deem  it  advisable  to  improve 
any  of  the  real  estate  held  by  them  in  trust  by  erect- 
ing buildings  and  making  improvements  thereon,  and 
if  at  any  time  assessments  for  improvements  are 
levied  upon  any  such  real  estate,  then  I  direct  my 
said  trustees  to  use  and  employ  for  such  purposes 
any  of  the  funds,  securities  or  other  personal  property 
constituting  a  part  of  the  principal  of  the  trust. 

A  form  like  the  following  as  to  purchase  and 
foreclosure  may  be  of  use: 

In  case  of  the  foreclosure  of  mortgages  upon  any 
real  estate  held  by  my  said  trustees,  I  authorize 
and  empower  them  to  purchase  the  same  by  auction 
or  otherwise  and  hold  the  realty  thus  acquired  as  a 
part  of  the  trust  estate  in  place  of  the  mortgages  so 
foreclosed. 

6.  Auditing  Accounts  and  Examining  Securities. 

It  is  remarkable  that  in  so  many  States  there  are 
no  statutes  permitting  beneficiaries  and  remainder- 


390  TESTAMENTARY   FORMS 

men  to  examine  the  assets  and  securities  of  trust 
estates  under  proper  regulations.  That  an  auditor 
of  an  executor's  or  trustee's  account  may  be  pro- 
vided for  by  will  goes  without  question.  Williams 
v.  Corbet,  8  Sim.  349.  One  of  two  methods  may 
be  adopted,  either  providing  for  an  auditor  or  giving 
the  person  interested  the  privilege  of  investigating 
for  himself.  If  every  will  should  contain  a  provi- 
sion on  the  subject,  and  the  parties  in  interest  or 
their  attorneys  should  investigate  annually,  there 
would  be  very  few  cases  of  defalcation  by  trustees. 
The  following  forms  may  be  of  service: 

AUDITING  AND  EXAMINING  ACCOUNTS. 

Every  year  when  my  trustees  have  prepared  their 
account  and  are  ready  to  submit  the  same  to  the 
court,  I  direct  and  order  them  to  give  an  accurate 
copy  of  the  same  to  A.  B.  [the  beneficiary]  and  C.  D. 
[the  remainder-man]  and  thereupon  to  present  and 
submit  to  them  or  their  duly  appointed  attorney 
or  attorneys  at  the  Safe  Deposit  vaults  or  hi  any 
other  proper  place  the  securities,  assets  and  property 
of  the  estate,  and  allow  them  ample  time  to  examine 
and  investigate  the  same.  And  I  authorize  the  said 
A.  B.  and  C.  D.  to  make  such  examination  and  take 
such  notes  and  make  such  copies  as  they  may  desire 
either  personally  or  by  attorney,  and  I  direct  said 
trustees  to  give  them  reasonable  aid  and  assistance. 

When  my  trustees  have  prepared  their  yearly 
account  and  are  ready  to  submit  it  to  the  court,  I 


TRUST  AND   TRUSTEE  391 

direct  them  to  give  an  accurate  copy  thereof  to  any 
accountant  or  auditor  that  my  said  wife  [the  bene- 
ficiary] may  select,  and  submit  to  him  for  examina- 
tion and  verification  the  securities,  assets  and  other 
property  of  the  trust  estate.  Thereupon  the  said 
accountant  or  auditor  shall  make  full  report  to  my 
said  wife  and  shall  be  paid  by  my  said  trustees  for 
his  services  from  the  income  of  the  trust  estate  the 
sum  of  one  hundred  dollars. 

I  request  my  trustees  to  keep  accurate  books  of 
account,  and  I  direct  that  all  parties  interested  hi 
this  trust,  both  life  tenants  and  remainder-men, 
shall  have  the  right  to  inspect  such  books  at  pleas- 
ure and  shall  also  be  entitled,  at  least  once  a  year,  to 
examine  the  securities,  assets  and  property  of  the 
trust  estate. 

I  request  and  require  my  trustees  to  furnish 
annual  accounts  to  each  of  the  cestuis  que  trust  and 
to  each  of  the  remainder-men  on  the  first  day  of 
January  of  each  year,  and  then  to  permit  all  of  the 
cestuis  que  trust  and  remainder-men  to  examine  and 
verify  all  the  investments,  securities  and  assets  of 
the  trust  estate. 

I  direct  my  said  trustees  to  keep  accurate  books  of 
account,  which,  together  with  all  vouchers,  papers, 
and  documents  relating  to  the  administration  of  the 
affairs  of  the  estate  and  also  all  the  securities,  prop- 
erty, assets,  and  investments  of  the  estate,  shall  be 


392  TESTAMENTARY   FORMS 

always  open  and  subject  to  the  inspection  of  the 
cestuis  que  trust  and  of  the  remainder-men  or  those 
entitled  to  the  principal  when  the  trust  shall  termi- 
nate; and  I  enjoin  upon  said  cestuis  que  trust  and 
remainder-men  or  those  entitled  to  the  principal 
as  aforesaid,  when  the  annual  account  of  the  trus- 
tees is  ready  for  presentation  to  the  Probate  Court, 
particularly  to  examine  all  the  securities,  assets, 
property,  and  investments  of  the  estate,  together 
with  the  papers,  vouchers,  and  documents  relating 
to  the  administration  thereof,  to  see  if  the  account 
is  made  up  accurately  and  properly.  If  my  said 
trustees  at  any  tune  and  in  any  way  attempt  to 
hinder  the  cestuis  que  trust  and  remainder-men  or 
those  entitled  to  the  principal  as  aforesaid  in  any 
inspection  and  examination,  then  I  desire  the  Judge 
of  Probate  to  remove  the  trustees  on  petition  and 
appoint  other  trustees  in  their  places. 

As  to  directions  that  a  majority  of  the  trustees 
may  act,  see  pp.  328  et  seq.  As  to  forms  as  to  dis- 
cretionary powers,  see  p.  343.  As  to  trustees  pur- 
chasing trust  property,  see  p.  345.  As  to  directions 
to  insure,  see  p.  345.  As  to  employment  of  attorneys, 
agents,  clerks,  etc.,  and  consultations  with  others, 
see  pp.  350  et  seq.  As  to  delegation  of  powers  and 
duties  by  power  of  attorney,  see  p.  355.  As  to  in- 
structions as  to  voting  shares,  see  p.  356.  As  to 
compromise  and  arbitration,  see  p.  348. 


TRUST  AND   TRUSTEE  393 

III.    The  Cestui  Que  Trust. 

1.  Who  may  be  a  Cestui  Que  Trust. 

It  is  a  general  rule  that  nearly  any  one  of  full  age 
may  be  a  cestui  que  trust,  unless  there  are  statutes 
to  the  contrary. 

2.  Payment  of  Income  —  Alienation  —  Accumula- 
tion. 

The  words  "rents"  and  "profits"  generally  apply 
to  income  from  real,  and  the  words  "income"  or 
"income  and  profits"  to  income  from  personal, 
property  held  in  trust.  It  is  common  to  regard  the 
word  "income"  as  meaning  "net  income,"  although 
many  testators  go  further  and  define  the  "net  in- 
come" as  all  the  income  remaining  after  the  "gross 
income"  has  been  reduced  by  payments  for  repairs, 
taxes,  trustees'  compensation,  insurance,  and  other 
current  and  incidental  expensed. 

In  some  jurisdictions  the  cestui  que  trust  is  en- 
titled to  the  income  from  and  after  the  death  of  the 
testator,  and  in  others  from  one  year  from  that  event, 
being  payable  then  only  at  the  end  of  the  second 
year.  See  Flummerfelt  v.  Flummerfelt,  51 .  N.  J. 
Eq.  432.  The  attorney  should  bring  this  matter 
to  the  attention  of  the  testator,  for  he  may  desire  to 
make  special  provision,  as  in  one  of  the  following 
forms: 


394  TESTAMENTARY  FORMS 

PAYMENT  OF  INCOME. 
( 

I  declare  that  the  income  of  all  trusts  created  by 
this  will  shall  be  payable  from  the  date  of  my  death. 

I  declare  that  the  income  of  all  trusts  created  by 
this  will  shall  be  payable  from  the  date  of  the  proving 
thereof  in  the  probate  court. 

I  declare  that  the  income  of  all  trusts  created  by 
this  will  shall  not  be  payable  until  two  years  have 
elapsed  from  the  day  of  my  decease. 

I  declare  that  the  income  of  all  trusts  created  by 
this  will  shall  be  payable  after  two  years  have  elapsed 
from  the  proving  of  this  will. 

Often  it  is  not  convenient  or  desirable  to  set  aside 
the  trust  estate  until  a  year  or  two  years  from  the 
testator's  decease,  so  special  provisions  are  inserted 
like  the  following: 

SPECIAL  PROVISIONS  AS  TO  BENEFICIARY. 

I  direct  my  executors  to  pay  to  A.  B.  in  quarterly 
payments  from  the  time  of  my  decease  until  property 
has  been  set  apart  for  the  establishment  of  the  trust 
for  his  benefit,  a  sum  of  money  which  shall  be  equal 
to  five  per  cent  per  annum  upon  the  amount  so  given 
in  trust. 

I  direct  that  the  beneficiaries  under  this  will 
shall  be  paid  from  the  general  funds  of  my  estate 
five  per  cent  interest  per  annum  from  the  time  of 


TRUST  AND   TRUSTEE  395 

my  decease,  on  amounts  equivalent  to  the  amounts 
given  in  trust  for  their  benefit  and  until  the  property 
shall  be  set  apart  for  the  establishment  of  the  trusts. 

As  the  trust  estate  for  the  benefit  of  my  wife  will 
not  be  established  until  two  years  after  the  proving 
of  this  will,  I  direct  my  executors  to  pay  to  her  from 
the  general  funds  of  my  estate,  in  monthly  instal- 
ments, beginning  from  my  decease  and  continuing 
until  said  trust  is  so  established,  the  sum  of  five  thou- 
sand dollars  per  annum. 

The  period  of  payment  should  be  stated  as 
"monthly,"  " quarterly, "  " semi-annually, "  "annu- 
ally, "  or  other  similar  provisions  should  be  made. 

In  giving  income  state  clearly  the  proportions,  and 
avoid  such  clumsy  expressions  as  the  net  income 
"shall  be  equally  divided  between  the  heirs  of  my 
mother  L.,  and  wife  E." 

A  testator's  solicitude  for  his  beneficiaries  often 
induces  him  to  provide  that  their  income  shall 
not  be  anticipated  or  alienated  by  them  or  seized 
and  appropriated  by  their  creditors.  In  England 
and  in  some  American  States  such  provision  is 
permitted  only  in  case  of  alienation,  attachment, 
bankrupcy,  etc.,  by  a  direction  that  the  estate  shall 
terminate  by  a  condition  or  conditional  limitation. 
The  provision  in  the  famous  case  of  Nichols  v. 
Eaton,  91  U.  S.  716,  which  was  sustained,  is  given 
in  Remsen  on  Wills,  517,  and  is  as  follows: 


396  TESTAMENTAEY   FORMS 

Provided  Always,  that  it  shall  not  be  lawful  for 
my  said  daughter  to  sell,  assign,  encumber,  charge, 
or  dispose  of,  by  way  of  anticipation  or  otherwise, 
the  income  so  to  her  payable  as  aforesaid,  or  any 
part  thereof;  and  that,  notwithstanding  any  such 
charge,  sale,  assignment,  or  other  disposition,  my 
said  trustees  are  hereby  required  to  pay  such  income 
into  the  proper  hands  of  my  said  daughter,  for  her 
separate  and  peculiar  use  and  benefit,  whether  mar- 
ried or  sote,  upon  her  own  receipts. 

Provided  Also,  that  if  my  said  sons  respectively 
should  alienate  or  dispose  of  the  income  to  which 
they  are  respectively  entitled  under  the  preceding 
trusts;  or  if,  by  reason  of  the  bankruptcy  or  insol- 
vency of  my  said  sons  respectively,  or  by  any  other 
means  whatsoever,  the  said  income  can  no  longer  be 
personally  enjoyed  by  my  said  sons  respectively,  but 
the  same  or  any  part  thereof  shall,  or,  but  for  this 
present  provision,  would  belong  to  or  become  vested 
in  or  payable  to  some  other  person  or  persons,  then 
the  trusts  hereinbefore  expressed  concerning  the 
said  income,  or  concerning  so  much  thereof  as  should 
or  would  have  so  become  vested  in  or  payable  to 
any  other  person  or  persons  other  than  my  said 
sons  respectively  as  aforesaid,  shall  immediately 
thereupon  cease  and  determine;  And  the  same 
income  shall  be  applied  by  my  said  trustees  during 
all  the  then  residue  of  the  life  of  my  said  sons  re- 
spectively in  manner  following;  that  is  to  say,  upon 
trust  to  pay  and  apply  the  said  income  or  such 
part  thereof  as  aforesaid  to  and  for  the  support  and 


TRUST  AND   TRUSTEE  397 

maintenance,  or  otherwise  for  the  use  and  benefit 
of  the  wife,  child,  or  children,  for  the  tune  being,  of 
my  said  sons  respectively,  or  such  one  or  more 
of  such  wife,  child,  or  children,  and  in  such  manner 
as  my  said  trustees  in  their  discretion  shall  think 
proper,  and  as  to  such  wife  for  her  sole  and  separate 
and  inalienable  use;  And  in  default  of  any  object 
of  the  last  mentioned  trust  at  any  period  during  the 
life  of  my  said  sons  respectively,  and  when  and  so 
often  as  the  same  shall  happen,  then,  upon  trust, 
from  time  to  tune,  so  long  as  such  vacancy  or  want 
of  objects  shall  continue,  to  accumulate  and  invest 
the  income  aforesaid  in  augmentation  of  the  prin- 
cipal or  capital  thereof  hi  the  nature  of  compound 
interest,  with  power  of  changing  investments  as 
hereinbefore  expressed;  And  in  case  at  any  tune 
after  my  decease  such  accumulation  should  cease 
to  be  lawful,  then  upon  trust,  to  apply  the  said  an- 
nual produce  and  income,  or  such  part  thereof  as 
may  not  lawfully  be  accumulated  during  said  want 
of  objects  as  aforesaid,  in  such  and  the  like  manner 
as  the  same  would  be  applicable  under  the  ulterior 
trusts  of  this  my  will. 

Provided  also,  that  in  case  at  any  future  period 
circumstances  should  exist  which,  hi  the  opinion  of 
my  said  trustees,  shall  justify  or  render  expedient 
the  placing  at  the  disposal  of  my  said  children  re- 
spectively any  portion  of  my  said  real  and  personal 
estate,  then  it  shall  be  lawful  for  my  said  trustees, 
hi  their  discretion,  but  without  its  being  in  any 
manner  obligatory  upon  them,  to  transfer  absolutely 


398  TESTAMENTARY   FORMS 

to  my  said  children  respectively,  for  his  or  her  own 
proper  use  and  benefit,  any  portion  not  exceeding 
one-half  of  the  trust  fund  from  whence  his  or  her 
share  of  the  income  under  the  preceding  trusts  shall 
arise;  and  immediately  upon  such  transfer  being 
made,  the  trusts  hereinbefore  declared  concerning 
so  much  of  the  trust  fund  as  shall  be  so  transferred 
shall  absolutely  cease  and  determine;  And  in  case 
of  the  cessation  of  said  income  as  to  my  said  sons 
respectively,  otherwise  than  by  death  as  herein- 
before provided  for,  it  shall  be  lawful  for  my  said 
trustees,  in  their  discretion,  but  without  its  being 
obligatory  upon  them,  to  pay  to  or  apply  for  the  use 
of  my  said  sons  respectively,  or  for  the  use  of  such 
of  my  said  sons  and  his  wife  and  family,  so  much 
and  such  part  of  the  income  to  which  my  said  sons 
respectively  would  have  been  entitled  under  the 
preceding  trusts  in  case  the  forfeiture  hereinbefore 
provided  for  had  not  happened. 

In  some  jurisdictions  it  is  settled  that  the  founder 
of  a  trust  can  secure  the  income  thereof  to  the  cestui 
que  trust  "by  providing  that  it  shall  not  be  alienable 
by  him,  or  be  subject  to  be  taken  by  his  creditors," 
without  any  cesser  or  limitation  over.  Broadway 
Bank  v.  Adams,  133  Mass.  170,  174.  In  other  juris- 
dictions such  negative  provisions  are  regarded  with 
disfavor,  and  those  which  direct  the  application  of 
the  income  for  the  support  of  the  beneficiary  or  a 
gift  over  are  commended,  as  in  the  following  form : 


TRUST  AND  TRUSTEE  399 

ANTICIPATION  AND  ATTACHMENT  OF  INCOME. 

I  give  to  the  Equitable  Trust  Company  of,  etc., 
the  sum  of  One  Hundred  Thousand  Dollars  in  trust 
to  invest  the  same  in  securities  and  property  such  as 
trustees  are  authorized  to  invest  in,  and  to  this  end 
I  give  said  trustee  full  power  and  authority  for  the 
purpose  of  varying  and  changing  the  investments 
and  reinvestments,  to  sell  both  real  and  personal 
property  by  public  auction  or  by  private  sale  and 
convey  the  same  by  such  deeds  or  other  instruments 
of  conveyance  and  transfer  as  may  be  necessary  to 
give  a  satisfactory  and  complete  title.  I  direct  said 
trustee  to  pay  from  the  income  of  the  trust  all  taxes, 
insurance  if  any,  brokerage  and  all  other  expenses 
incident  to  the  management  of  trust  estates,  in- 
cluding a  reasonable  amount  for  the  trustee's  com- 
pensation, and  then  to  pay  over  the  balance  of  the 
income,  which  I  denominate  the  net  income,  to  my 
son  A.  B.  during  the  term  of  his  natural  life.  I 
particularly  declare  that  the  said  A.  B.  shall  have 
no  right  to  anticipate  or  alienate  the  said  net  income 
and  that  the  same  shall  not  be  subject  to  attachment, 
seizure  or  sequestration  by  his  creditors,  by  any  legal 
process  or  procedure  whatever,  either  at  law  or  hi 
equity.  If  at  any  time  the  said  A.  B.  shall  attempt 
to  anticipate  or  alienate  said  net  income  or  shall 
become  a  bankrupt,  or  an  attempt  shall  be  made  by 
any  creditor  of  the  said  A.  B.  to  attach,  seize  or 
sequestrate  said  net  income,  then  the  said  A.  B.'s 
right  to  receive  the  same  shall  absolutely  cease  for 
the  rest  of  his  life  and  the  said  trustee  shall  apply 


400  TESTAMENTARY   FORMS 

the  same  for  the  support,  maintenance  and  benefit 
of  the  said  A.  B.  in  any  way  it  may  deem  best,  and 
its  expenditures  for  the  purpose  shall  not  be  ques- 
tioned by  the  said  A.  B.  or  any  one  else. 

On  the  death  of  the  said  A.  B.  this  trust  shall  ter- 
minate and  the  principal  of  the  trust,  including  in- 
crease and  accumulations,  if  any,  shall,  discharged 
of  all  trust,  be  divided  equally  among  the  children 
of  the  said  A.  B.  the  issue  of  a  deceased  child  to  take 
the  parent's  share  by  right  of  representation. 

Other  forms  may  be  found  on  pp.  523,  531,  590. 

It  is  common  to  provide  not  only  that  the  bene- 
ficiary shall  not  anticipate  the  income,  and  that 
his  creditors  shall  not  interfere  therewith,  but  also 
that  the  trustees  may  in  their  discretion  add  a  part 
or  all  of  the  income  to  the  principal  fund.  And  it 
should  appear  whether  the  discretion  is  to  with- 
hold the  income  entirely,  or  only  to  regulate  and 
control  the  time  and  mode  of  payment.  Williams  v. 
Bradley,  3  Allen,  270,  278.  Any  income  at  the  death 
of  the  beneficiary  in  the  hands  of  the  trustee,  and 
not  absolutely  added  to  the  principal,  will  doubtless 
go  to  the  beneficiary's  executor  or  administrator.  A 
testator  may  desire  to  provide  as  follows: 

If  at  the  time  of  the  decease  of  the  beneficiary 
there  is  in  the  hands  of  the  trustee  any  income  not 
absolutely  added  to  the  principal,  the  same  shall  be 
regarded  as  so  added  and  shall  be  disposed  of  as  part 
of  the  principal. 


TRUST   AND   TRUSTEE  401 

For  an  able  discussion  of  this  entire  subject,  see 
Gray's  Restraints  on  Alienation,  §  236  et  seq. 
The  following  is  offered  as  a  form: 

I  authorize  my  trustees  each  year  to  set  aside  and 
add  to  the  principal  of  the  trust  fund  such  part  of 
the  net  income  as,  in  the  exercise  of  a  sound  discre- 
tion, they  may  deem  best,  and  sums  so  added  shall 
become  as  much  a  part  of  the  principal  as  if  origi- 
nally a  part  thereof;  but  I  trust  that  my  said  trus- 
tees will  not  so  capitalize  any  part  of  the  income  if 
the  habits  of  the  beneficiary  are  good  and  his  life 
is  exemplary. 

Other  forms  are  given  on  pp.524,  531, 552, 557, 590. 

When  the  trust  is  largely  of  realty,  a  provision  like 
the  following  is  sometimes  inserted: 

Instead  of  paying  the  entire  net  income  to  the 
beneficiary,  my  said  trustee  and  his  successors  may 
apply  such  portions  thereof,  as  he  and  they  may 
deem  best,  either  in  the  payment  and  discharge  of 
mortgages  or  other  incumbrances  upon  the  realty  of 
the  trust  estate  or  in  making  improvements  thereon. 

3.  Annuities. 

An  annuity  is  a  fixed  amount  payable  absolutely, 
and  thus  differs  from  income.  If  a  testator  gives 
an  annuity,  it  should  clearly  appear  whether  it  is 
his  intention  to  create  a  trust  fund  or  to  make  the 


402  TESTAMENTARY   FORMS 

same  a  payment  out  of  his  estate  generally.  Swett  v. 
Boston,  18  Pick.  123,  128.  If  a  fixed  amount  is  set 
apart  as  the  principal  sum  out  of  which  an  annuity 
is  to  be  paid,  it  may  in  a  few  years  so  depreciate  as 
not  to  yield  the  amount  of  the  annuity;  in  which 
case  the  annuitant  may  have  an  action  against  the 
residuary  legatees,  if  distribution  has  been  made  to 
them.  See  2  Williams  on  Executors  (7th  Am.  ed.), 
664  et  seq.  Or  it  may  possibly  yield  a  sum  in  excess 
of  the  annuity,  so  that  there  will  be  an  accumulation 
of  income  in  the  hands  of  the  trustee  unprovided  for 
by  the  will.  Russell  v.  Loring,  3  Allen,  121.  Of 
annuities  it  may  be  said  that  they  are  for  life,  un- 
less a  contrary  intention  is  expressed;  that  annual 
taxes  on  principal  are  generally  not  deducted  from 
annuities;  that,  if  there  is  no  provision  to  the 
contrary,  an  annuity  is  in  most  cases  alienable  and 
subject  to  claims  of  creditors;  that  annuities  are 
payable  one  year  from  the  testator's  death,  if  there 
is  no  statute  or  provision  in  the  will  to  the  contrary; 
and  that  in  some  States  annuities  are,  by  statute, 
regarded  as  accruing  from  day  to  day  and  appor- 
tioned accordingly.  See  Remsen  on  Wills,  145. 

If  the  testator  is  determined  to  set  apart  a  certain 
sum  as  principal,  the  best  way  is  to  give  the  annuitant 
the  entire  net  income.  For  form,  see  p.  525.  If  an 
executor  and  residuary  legatee,  having  given  a  bond 
to  pay  debts  and  legacies,  becomes  bound  to  pay  an 
annuity  during  his  life,  he  may  create  a  trust  in  his 
own  will  from  the  income  of  which  the  annuity  shall 
be  paid  after  his  death.  Brooks  v.  Rice,  131  Mass. 


TRUST  AND   TRUSTEE  403 

408.  As  to  annuities  where  the  trust  is  created  for 
the  benefit  of  more  than  one,  see  p.  435. 

Sometimes  a  testator  gives  his  wife  an  annuity 
during  widowhood  of  an  amount  which  shall  with 
the  income  derived  from  her  own  property  equal  a 
certain  sum  per  annum.  Such  a  provision  is  not 
wise,  as  the  trustee  may  not  be  able  to  ascertain 
just  what  her  income  from  her  own  property  is, 
and  the  income  itself  may  vary. 

The  following  forms  relate  to  annuities: 

ANNUITIES. 

I  give  to  A.  B.  the  sum  of  One  Thousand  Dollars 
per  annum,  payable  quarterly,  for  the  period  of  five 
years  after  the  proving  of  this  will,  provided  she 
continues  during  that  period  to  be  the  companion  of 
my  mother,  C.  D. 

I  direct  my  trustees  to  pay  to  my  wife,  A.  B.,  an 
annuity  of  Five  Thousand  Dollars  during  her  life, 
the  same  to  be  paid  semi-annually. 

I  direct  my  trustees  to  pay  to  the  Wedgwood 
Infirmary  the  sum  of  One  Thousand  Dollars  per 
annum  for  a  period  of  five  years  after  my  decease. 
I  trust  that  thereafter  the  members  of  my  family 
will  contribute  to  the  support  of  said  Infirmary. 

I  give  my  son,  A.  B.,  an  annuity  of  Three  Thousand 
Dollars  payable  semi-annually;  but,  if  at  any  time 
he  shall  assign  the  same  or  anticipate  the  payment 


404  TESTAMENTARY   FORMS 

thereof  in  any  manner,  or  the  same  shall  be  attached 
or  seized  by  his  creditors  by  any  proceedings  at  law 
or  in  equity,  then  I  direct  that  the  payment  of  the 
annuity  to  him  shall  cease  and  that  my  trustees 
shall  apply  the  same  for  his  maintenance  and  support. 

I  give  A.  B.,  C.  D.,  and  E.  F.  of  etc.,  each  an 
annuity  of  One  Thousand  Dollars  payable  quarterly, 
the  first  payment  to  be  made  three  months  from  the 
day  of  my  decease;  and  I  authorize  and  direct  my 
executors  and  trustees  to  set  apart  from  my  estate 
a  fund  the  income  of  which  shall  be  sufficient  to 
produce  said  annuities,  and  upon  the  death  of  the 
first  annuitant  to  pay  into  the  residue  of  my  estate 
one-third  of  said  fund,  discharged  of  all  trust;  upon 
the  death  of  the  second  annuitant  one-half  of  the 
remaining  fund,  discharged  of  all  trust,  and  upon 
the  death  of  the  last  annuitant  the  balance  of  the 
fund,  discharged  of  all  trust. 

During  the  period  which  shall  elapse  from  the 
date  of  my  decease  until  the  fund  is  set  apart  to 
produce  the  annuity  of  Five  Hundred  Dollars  given 
above  to  A.  B.,  I  direct  my  executors  to  pay  the 
said  A.  B.,  from  the  general  funds  of  my  estate,  One 
Hundred  and  Twenty-five  Dollars  every  three 
months,  and  proportionately  for  a  fraction  of  that 
period. 

I  give  my  wife  A.  B.  an  annuity  of  Five  Thousand 
Dollars,  beginning  with  the  date  of  my  death  and 


TRUST   AND    TRUSTEE  405 

payable  quarterly;  and  I  direct  my  executors  to  set 
apart,  and  transfer  and  turn  over  to  my  trustees 
before-mentioned  sufficient  securities  to  produce 
this  annuity.  Upon  the  death  of  the  said  A.  B.,  I 
give  said  securities  or  the  property  into  which  they 
may  have  been  converted,  discharged  of  all  trust, 
to  any  person  or  persons  she  may  name  and  appoint 
in  and  by  her  last  will  and  testament;  and  in  default 
of  such  appointment,  to  the  General  Hospital  of,  etc. 

Having  created  a  trust  fund,  the  income  of  which 
will  be  more  than  sufficient  in  my  judgment  to  sat- 
isfy the  annuities  given  above,  I  direct  my  trustee 
to  add  any  part  of  the  income  not  required  for  that 
purpose  to  the  principal  of  the  trust. 

I  direct  my  executors  to  set  apart  such  funds  or 
securities  as  they  in  their  judgment  may  deem  ade- 
quate to  provide  for  the  annuities  given  in  this 
will,  and  I  declare  that  said  annuities  shall  in  no 
event  be  a  charge  upon  any  of  my  real  estate. 

All  annuities  bequeathed  herein  shall  be  reckoned 
from  the  day  of  my  death  and  payable  semi-annually 
on  the  first  days  of  January  and  July,  except  that 
the  first  payment  shall  include  the  fractional  part 
of  the  six  months  between  the  date  of  my  death  and 
the  succeeding  first  day  of  January  or  July,  which- 
ever it  may  be. 

Another  form  may  be  found  on  pp.  531  et  seq. 


406  TESTAMENTARY   FORMS 

4.  Application  of  Income  for  Education,  Main- 
tenance, and  Support. 

A  testator  may  give  the  income  of  property  to  a 
person  for  the  education,  support,  and  maintenance 
of  children  or  others,  and  such  person  will  be  entitled 
to  the  income  so  long  as  he  properly  maintains 
them.  Chase  v.  Chase,  2  Allen,  101.  It  should 
clearly  appear,  where  there  is  a  trust,  whether  the 
trustee  is  to  pay  over  the  income  or  personally  ex- 
pend it  for  the  beneficiary.  If  the  beneficiary  is  an 
infant,  is  incompetent,  or  is  laboring  under  some 
disability,  it  may  be  well  to  authorize  the  trustee 
to  pay  the  income  to  a  guardian,  an  individual,  or 
some  legally  constituted  authority  for  the  support 
of  the  beneficiary.  If  the  whole  of  the  income  is  not 
to  be  applied,  provision  should  be  made  for  disposing 
of  the  remainder.  The  trust  should  be  so  drawn  that 
all  discretionary  powers  shall  pass  to  the  trustee's 
successor  or  successors.  It  may  be  well  to  provide 
that  the  income  shall  not  be  alienated  or  be  subject 
to  seizure  by  creditors.  If  the  trustee  is  to  apply 
the  income  for  the  education  and  support  of  a  child 
during  minority,  the  trust  to  terminate  at  his 
majority  and  the  principal  to  be  paid  to  him,  it  is 
suggested  that  a  direction  be  inserted  in  the  will 
that  all  income  not  needed  for  the  above  purposes 
be  accumulated.  See  Matter  of  McCormick,  40 
N.  Y.  App.  Div.  73;  163  N.  Y.  551. 

If  the  trustee  of  a  small  estate  is  to  provide  for 
the  beneficiary's  support,  it  should  clearly  appear 
whether,  in  the  event  of  the  income  proving  in- 


TRUST  AND   TRUSTEE  407 

sufficient  for  that  purpose,  he  may  resort  to  the 
principal. 

In  all  cases  where  the  income  given  for  the  support 
of  a  person  infirm  or  advanced  in  years  is  that  per- 
son's only  means  of  support,  it  is  advisable  to  provide 
that  the  trustee  shall  pay  from  income  on  hand,  or,  if 
there  is  no  income  in  his  possession,  then  from  the 
principal,  the  beneficiary's  funeral  expenses,  and  the 
expenses  of  the  last  sickness.  See  p.  526. 

The  following  forms  may  be  of  service: 

INCOME  FOR  EDUCATION  AND  SUPPORT. 

I  authorize  and  direct  my  said  trustee  to  apply 
all  or  any  part  of  the  net  income  to  the  education 
and  maintenance  of  the  said  A.  B.  during  minority 
in  such  manner  as  my  said  trustee  shall  deem  best, 
adding  any  part  of  said  income  which  he  does  not 
so  apply  to  the  principal  of  the  trust,  and  he  shall 
not  be  answerable  to  any  court  or  individual  for 
the  application  and  expenditure  of  said  income,  as 
above  directed.  I  further  authorize  my  said  trustee, 
instead  of  so  applying  the  said  income,  to  pay  the 
same  to  the  guardian  of  the  said  A.  B.,  and  my  said 
trustee  shall  then  be  released  from  all  responsibility 
as  to  the  application  thereof,  but  shall  add  any  part 
of  said  income  not  paid  to  said  guardian  to  the  prin- 
cipal of  the  trust. 

If  my  grandchildren  A.  B.  and  C.  D.  are  under 
twenty-one  years  at  the  tune  of  my  decease,  I  direct 
my  said  trustees  to  apply  in  their  discretion  so  much 


408  TESTAMENTARY   FORMS 

of  the  net  income  of  the  trust  as  they  may  think 
necessary  for  the  education,  maintenance  and  sup- 
port of  said  grandchildren  during  their  respective 
minorities.  If  my  said  trustees  deem  best,  they  may 
pay  said  income  directly  to  said  grandchildren  after 
they  arrive  respectively  at  the  age  of  eighteen  years, 
or  may  pay  the  same  to  their  guardian  or  guardians 
until  they  are  respectively  of  age;  and  neither  they 
nor  said  guardians  shall  be  held  responsible  for  the 
application  of  said  income  as  aforesaid;  and  all  in- 
come not  so  applied  or  paid  over  to  said  grandchil- 
dren or  their  guardian  or  guardians  shall  be  added 
by  the  said  trustees  to  the  principal  of  the  trust. 

My  trustees  may  during  the  minority  of  any 
beneficiary  under  this  will  apply  in  their  discretion 
the  whole  or  any  part  of  the  income  of  the  trust 
estate  held  for  such  beneficiary  for  his  or  her  main- 
tenance, education  and  support,  adding  the  income 
not  so  applied,  if  any,  to  the  principal  of  the  trust; 
and  this  authority  may  be  exercised  by  my  said 
trustees  regardless  of  the  ability  of  the  parents  to 
educate  and  support  such  beneficiary  or  the  existence 
of  any  other  fund  that  may  be  used  for  the  purpose; 
but  my  said  trustees  may,  instead  of  so  applying 
said  income,  pay  over  the  same  to  the  parent  or 
guardian  of  such  beneficiary  and  shall  not  be  held 
responsible  for  the  application  thereof. 

While  I  leave  to  the  discretion  of  my  trustee  the 
amount  to  be  applied  by  him  to  the  support  and 


TRUST  AND   TRUSTEE  409 

maintenance  of  my  son,  yet,  if  there  is  no  improve- 
ment in  his  habits,  I  suggest  that  one  thousand 
dollars  per  annum  will  be  ample. 

I  give  to  my  trustees  and  their  successors  the  sum 
of  Two  Hundred  Thousand  Dollars,  and  I  direct 
them  to  apply  as  much  of  the  net  income  thereof  as 
they  in  their  discretion  may  deem  adequate  for  the 
maintenance  and  support  of  my  son  A.  B.,  who  is 
deprived  of  his  reason.  I  authorize  and  direct 
them  to  rent  a  house  for  the  use  and  occupancy  of 
my  said  son,  if  they  think  expedient,  and  provide 
him  with  the  comforts  and  luxuries  of  life,  the  best 
medical  attendance,  and  the  most  efficient  nurses 
and  servants.  They  may  expend  money  from  said 
net  income  for  any  other  purposes  which  they  may 
deem  conducive  to  his  happiness.  If  in  their  judg- 
ment all  the  income  of  the  estate  is  not  required  for 
his  support  and  maintenance,  then  I  direct  them 
to  add  all  unexpended  income  to  the  principal  and 
the  same  shall  become  as  much  a  part  of  the  prin- 
cipal as  if  originally  a  part  thereof.  If  the  said  A.  B. 
be  restored  to  reason,  the  trust  is  to  terminate,  and 
the  entire  principal  with  accumulations,  if  any,  and 
all  unexpended  income  is  to  be  paid  to  him,  dis- 
charged of  all  trust.  If  he  die  without  being  re- 
stored to  reason,  the  trust  is  to  terminate,  and  the 
entire  principal  with  accumulations,  if  any,  dis- 
charged of  all  trust,  is  to  be  paid  to,  etc. 

Other  forms  are  given  on  pp.  519, 524, 531, 552, 557. 


410  TESTAMENTARY   FORMS 

5.  Questions  between  Tenant  for  Life  and  Remain- 
der-man. 

It  is  well  established  that  the  trustee  must  consult 
alike  the  interests  of  the  tenant  for  life  and  remain- 
der-man. For  this  reason  it  is  apparent,  as  already 
stated,  that  the  same  person  should  not  be  both 
trustee  and  remainder-man.  See  p.  365. 

In  regard  to  insurance,  repairs,  taxes,  etc.,  the 
following  points  are  important: 

Both  the  life  tenant  and  the  remainder-man  have 
an  insurable  interest  in  the  buildings  situated  upon 
the  trust  estate.  See  Lerow  v.  Wilmarth,  9  Allen, 
382;  2  Perry  on  Trusts,  §  553.  "We  have  been 
referred  to  no  case  in  which  it  has  been  decided  that 
the  neglect  of  the  life  tenant  to  insure  is  to  be  re- 
garded as  in  the  nature  of  voluntary  or  permissive 
waste,  though  it  has  been  held  that  the  failure  to 
pay  taxes  is;  Stetson  v.  Day,  51  Maine,  434;  but 
that  manifestly  stands  on  different  ground."  Harri- 
son v.  Pepper,  166  Mass.  288,  289.  See  as  to  insur- 
ance, p.  345. 

It  has  been  held  that  the  insurance  money  re- 
ceived by  the  tenant  for  life  is  personal  estate,  and 
cannot  be  applied  to  the  building  of  a  new  house 
without  the  consent  of  the  remainder-man.  Haxall 
v.  Shippen,  10  Leigh,  536.  See  forms  on  pp.  513, 
573. 

The  following  is  offered  as  a  form: 

In  case  of  injury  to,  or  destruction  of,  any  build- 
ing belonging  to  the  trust  estate,  whether  the  same 


TRUST  AND   TRUSTEE  411 

be  caused  by  fire  or  otherwise,  then  I  authorize  my 
trustees  in  their  discretion  to  invest  the  moneys, 
received  on  account  of  insurance  against  such  in- 
jury or  destruction,  in  property,  real  or  personal, 
suitable  for  trustees  to  invest  in,  or  to  use  the  same 
for  the  restoration  or  rebuilding  of  the  structure; 
and,  if  such  moneys  prove  insufficient  for  that  pur- 
pose, the  trustees  may  make  up  the  balance  from 
other  funds  belonging  to  the  trust  estate. 

Other  forms  are  given  on  pp.  345-347. 

It  has  been  held  that  the  expense  of  putting  into 
tenantable  repair  an  estate  purchased  by  a  trustee 
is  a  charge  on  the  principal  fund,  but  that  of  keep- 
ing it  in  repair  is  a  charge  on  the  income.  Parsons 
v.  Winslow,  16  Mass.  361. 

"The  repair  of  trust  property  is  frequently  the 
subject  of  express  provisions  in  wills  and  settle- 
ments, and  trustees  must  be  governed  by  the  direc- 
tions contained  hi  the  instruments  of  trust.  So 
there  are  frequent  directions  in  instruments  of  trust 
respecting  insurance  of  property,  and  the  use  and 
application  of  the  insurance  money  in  case  of  loss 
or  damage  by  fire."  2  Perry  on  Trusts,  §  553. 

The  tenant  for  life  pays  ordinary  taxes.  See  Lor- 
ing's  A  Trustee's  Handbook  (3d  ed.),  139.  "But 
when  the  whole  estate  is  subject  to,  and  benefited 
by  the  discharge  of,  an  incumbrance  not  created  by 
either,  equity  will  apportion  it  ratably  between  their 
different  interests."  Plympton  v.  Boston  Dispen- 
sary, 106  Mass.  544,  547.  This  was  the  case  of  an 


412  TESTAMENTARY   FORMS 

assessment  for  a  betterment,  and  it  was  held  that 
"the  tenant  for  life  must  contribute  to  the  extent  of 
interest  during  his  life  on  the  amount  paid,  and  at 
his  death  the  remainder-man  must  bear  the  charge 
of  the  principal." 

As  to  the  discharge  of  incumbrances  generally, 
see  Loring's  A  Trustee's  Handbook  (3d  ed.),  137. 

That  generally  repairs  of  real  estate  come  out  of 
income  and  substantial  improvements  out  of  capital, 
see  Little  v.  Little,  161  Mass.  188,  194,  195,  202. 
Where  a  testator  creates  a  trust  consisting  entirely 
of  realty,  it  is  suggested  that  some  provision  be  in- 
serted as  to  extraordinary  taxes. 

Perplexing  questions  constantly  arise  as  to  what 
is  income  to  go  to  the  cestui  que  trust,  and  capital  to 
be  added  to  the  principal. 

The  rule  in  Massachusetts  stated  in  Minot  v. 
Paine,  99  Mass.  101,  108,  that  "cash  dividends, 
however  large,  are  income,  and  stock  dividends, 
however  made,  are  principal,"  has  been  modified 
by  later  opinions.  This  subject  is  of  especial  in- 
terest to  testators  in  those  States  in  which  trustees 
are  permitted  to  invest  in  the  shares  of  corporations. 

The  disbursements  of  the  earnings  of  a  corpora- 
tion, either  as  profits  or  in  the  shape  of  additional 
stock,  is  a  matter  of  great  uncertainty,  and  the 
methods  of  disbursements  are  so  various  as  to  make 
it  impossible  to  apply  a  general  rule.  The  vote  of 
the  directors  or  stockholders  authorizing  extra 
dividends  is  often  resorted  to  by  the  courts  to  throw 


TRUST   AND   TRUSTEE  413 

light  upon  the  subject.  If  the  attention  of  a  tes- 
tator is  called  to  this  matter,  he  may  authorize  the 
insertion  in  his  will  of  a  provision  like  one  of  the 
following: 

CASH  AND  STOCK  DIVIDENDS. 

If  at  any  time  during  the  continuance  of  this 
trust  a  stock  dividend  or  an  extra  cash  dividend 
shall  be  declared  upon  any  shares  of  stock  of  any 
corporation  held  as  a  part  of  the  principal  of  this 
trust,  such  stock  dividends  shall  be  regarded  as 
capital  and  shall  be  added  to  the  principal  and 
form  part  thereof,  and  such  cash  dividend  shall  be 
regarded  as  income  and  shall  be  paid  to  the  cestui 
que  trust. 

In  the  case  of  stock  or  extra  cash  dividends  de- 
clared upon  any  shares  of  stock  of  any  corporation 
at  any  tune  forming  a  part  of  the  principal  of  this 
trust,  I  direct  my  said  trustee  and  his  successor  and 
successors  in  that  capacity  to  determine  whether 
such  stock  and  extra  cash  dividends  are  capital  or 
income  and  I  confer  upon  him  and  them  absolute 
discretion  to  add  any  part  or  all  of  such  stock  and 
cash  dividends  to  the  principal  to  form  part  thereof, 
or  to  pay  out  any  or  all  of  the  same  as  income  to 
the  cestui  que  trust. 

If  at  any  time  during  the  continuance  of  this 
trust  a  stock  dividend  or  an  extra  cash  dividend 
shall  be  declared  upon  any  shares  of  stock  of  any 
corporation  held  as  a  part  of  the  principal,  I  au- 


414  TESTAMENTARY   FORMS 

thorize  and  direct  my  said  trustee  and  his  successor 
and  successors  in  that  capacity  to  regard  all  such 
stock  and  extra  cash  dividends  as  income  and  pay 
over  and  transfer  the  same  to  the  beneficiary. 

Where  any  questions  may  possibly  arise  as  to 
capital  and  income  I  direct  that  the  money  in  dis- 
pute whether  profits,  dividends,  extra  dividends  or 
interest  be  treated  as  income  and  not  as  principal. 
In  all  cases  of  stock  dividends,  three-quarters  thereof 
are  to  be  treated  as  principal  and  one-quarter  as 
income. 

I  give  my  trustees  full  power  and  authority  to 
decide  and  determine  what  property  or  money  re- 
ceived by  them  shall  be  capital  and  what  shall  be 
income,  and  all  beneficiaries  and  remainder-men 
shall  be  bound  by  their  decision  and  determination. 

Another  form  is  given  on  p.  577. 

The  question  "often  arises  between  partners  as 
to  what  shall  be  called  capital  and  what  income 
when  by  then'  contributions  to  the  capital,  or  by  the 
terms  of  the  partnership  articles,  their  proportional 
shares  of  the  income  are  different  from  their  shares 
in  the  capital.  Such  questions  arise  when  a  partner- 
ship business  is  closed  and  the  partnership  affairs 
are  settled,  or  at  an  earlier  tune  when  there  is  a  divi- 
sion of  the  profits.  In  reference  to  such  a  question 
the  rule  is  that  everything  in  addition  to  the  capital 
contributed  by  the  individual  partners  is  income; 


TRUST   AND   TRUSTEE  415 

but  the  question  in  reference  to  the  rights  of  life 
tenants  and  remainder-men  is,  What  part  of  the 
property  is  held  in  the  business  as  a  fund  to  be  used 
for  the  benefit  of  the  business  and  what  part  is  per- 
manently separated  from  the  business  and  turned 
over  to  the  individual  proprietors  as  income  to  be 
spent?"  D'Ooge  v.  Leeds,  176  Mass.  558,  563. 

Where  the  residue  of  personal  estate  which  con- 
sists of  various  and  uncertain  investments,  as  an 
interest  in  a  partnership  or  a  leasehold  estate,  is 
made  the  subject  of  a  trust,  a  part  of  the  profits 
received  before  conversion  is  made  will  be  invested 
as  capital  and  a  part  distributed  as  income.  Kin- 
month  v.  Brigham,  5  Allen,  270,  280;  Westcott  v. 
Nickerson,  120  Mass.  410;  Minot  v.  Thompson,  106 
Mass.  583. 

This  introduces  the  subject  of  wasting  invest- 
ments. Where  a  testator  proposes  to  give  specific 
property  or  the  residuum  of  his  estate  in  trust,  his 
attention  should  be  called  to  the  law  of  wasting  in- 
vestments. Howe  v.  Earl  of  Dartmouth,  7  Ves.  137. 
If  this  residuum  consists  of  uncertain  investments, 
as  an  interest  in  a  partnership,  leasehold  estates, 
ships  not  sold  and  wound  up  or  at  sea,  shares  in  min- 
ing companies,  copyrights,  patents,  etc.,  it  may  be 
advisable  to  make  special  provisions  as  to  what  pro- 
portion of  the  money  to  be  received  from  them  shall 
go  to  the  tenant  for  life  and  what  proportion  shall 
be  added  to  the  capital.  See  2  Seton's  Judgments 
and  Orders  (5th  ed.),  1417.  In  the  absence  of  such 
provisions  the  following  deserve  notice: 


416  TESTAMENTARY   FORMS 

1.  In  England  personal  property  must  be  con- 
verted, if  possible;  and  after  conversion  the  method 
adopted  is  to  calculate  what  sum  put  out  at  interest 
at  four  per  cent  per  annum  on  the  day  of  the  testator's 
death,  and  accumulating  at  compound  interest  at 
that  date,  with  yearly  rests,  and  deducting  income 
tax,    would,    with    the    accumulations    of    interest, 
amount  on  the  day  when  the  reversion  falls  in  or  is 
realized  to  the  sum  actually  received;  and  the  sum 
so  calculated  represents  corpus  and  the  rest  is  in- 
come.   Re  Earl  of  Chesterfield's  Trusts,  24  Ch.  D. 
643;  Beavan  v.  Beavan,  24  Ch.  D.  649,  n.;  Wilkin- 
son v.  Duncan,  23  Beav.  469.     This  rule  has  been 
followed  in  Massachusetts  in  Kinmonth  v.  Brigham, 
5  Allen,  270,  and  Westcott  v.  Nickerson,  120  Mass. 
410.    These  were  partnership  cases  and  the  rate  of 
interest  was  fixed  at  six  per  cent. 

2.  Where  property  is  so  laid  out  as  to  be  secure, 
and  to  produce  a  large  annual  income,  but  is  not 
capable  of  immediate  conversion  without  loss  and 
damage  to  the  estate,  the  rule  in  England  is  not  to 
convert  the  property,  but  to  set  a  value  upon  it, 
and  to  give  to  the  tenant  for  life  four  per  cent  on  such 
value,  and  the  residue  of  the  income  must  then  be 
invested,  and  the  income  of  the  investments  paid  to 
the  tenant  for  life,  but  the  corpus  must  be  secured 
for  the  remainder-man.     Meyer  v.  Simonsen,  5  De 
G.  &  Sin.  723,  726;  Arnold  v.  Ennis,  2  Ir.  Ch.  Rep. 
601;  Re  Llewellyn,  29  Beav.  171;  Caldecott  v.  Calde- 
cott,  1  Y.  &  C.  C.  C.  312;  Gibson  v.  Bott,  7  Ves.  89. 
See  Brown  v.  Gellatly,  2  Ch.  751,  759.    This  rule  is 


TRUST  AND   TRUSTEE  417 

followed  in  Minot  v.  Thompson,  106  Mass.  583. 
While  in  Massachusetts  in  Hyde  v.  Hilliard,  Supr. 
Jud.  Court,  Suffolk,  No.  762,  Eq.,  1883,  which  was 
not  appealed,  the  judge  held  that  the  money  re- 
ceived from  the  testator's  copyrights  was  income, 
as  certain  provisions  indicated  the  testator's  inten- 
tion, he  also  held  that  Calumet  and  Hecla  mining 
stock  came  within  the  above  rule,  and  that  interest 
should  be  allowed  at  six  instead  of  four  per  cent.  In 
the  case  of  Bowditch  v.  Coffin,  in  the  same  court,  No. 
4772,  Eq.,  1895,  which  was  not  appealed,  the  judge 
held  that  the  fair  valuation  of  the  testator's  copy- 
rights, at  his  death,  was  $30,000,  and  that  the 
tenants  for  life  were  entitled  to  four  per  cent  on  the 
amount  of  such  value  from  the  day  of  the  death  of 
the  testator  for  the  first  year  after  the  testator's 
decease,  the  same  to  be  paid  from  the  sums  paid 
in  under  the  contracts  and  copyrights  for  that 
year,  and  the  residue  for  that  year  was  to  be  added 
to  and  to  form  part  of  the  principal  of  the  trust 
fund;  that  from  the  funds  so  paid  in  under  the  con- 
tracts and  copyrights  for  the  second  year  after  the 
testator's  decease  the  tenants  for  life  were  entitled 
to  four  per  cent  on  $30,000  after  first  deducting  there- 
from the  residue  added  to  the  principal  at  the  end 
of  the  first  year;  and  the  residue  at  the  end  of  the 
second  year  was  then  to  be  added  to  and  to  form 
part  of  the  principal  of  the  trust,  and  so  on  from 
year  to  year,  until  finally  the  whole  proceeds  of  the 
property  except  the  sums  paid  to  the  life  tenants 
should  be  transferred  to  the  principal;  and  that  the 


418  TESTAMENTARY   FORMS 

parties  should  be  permitted  at  any  time  thereafter, 
in  case  of  change  of  circumstances,  to  apply  to  the 
court  for  a  modification  of  the  valuation,  etc.  A 
similar  decision  was  rendered  in  the  Probate  Court 
of  Suffolk  County  relative  to  the  shares  of  the  same 
testator  in  the  Calumet  and  Hecla  mine,  No.  94,395. 
As  to  copyrights  when  the  author  is  not  living,  see 
p.  77.  This  whole  subject  is  one  of  much  impor- 
tance, and  in  certain  cases  it  may  be  advisable  to 
express  an  intention  hi  the  will.  Many  decisions 
will  be  found  hi  2  White  &  Tudor,  Lead.  Cas.  in  Eq. 
(ed.  of  1891),  Pt.  1,  321  et  seq.;  2  Seton's  Judg- 
ments and  Orders  (5th  ed.),  1417  et  seq.  It  is 
evident  that  where  a  trust  is  created  out  of  the 
residuum  the  attorney  should  know  of  what  the 
residuum  consists. 

If  the  interest  hi  a  business  is  given  in  trust,  the 
investment  is  of  course  a  wasting  one,  and  it  follows 
that,  if  the  business  is  incorporated,  the  investment 
remains  the  same.  Hence  where  shares  in  an  in- 
corporated business  are  the  subject  of  a  trust  it  is 
well  to  provide  for  the  payment  of  the  entire  divi- 
dend to  the  beneficiary,  or  for  the  addition  of  a  part 
thereof  to  the  capital. 

The  following  forms  are  believed  to  cover  most 
cases  of  wasting  investments: 

WASTING  INVESTMENTS. 

The  50  shares  of  the  capital  stock  of  the  Calumet 
and  Hecla  Mining  Company  given  herein  by  me  in 
trust  and  which  I  have  directed  my  trustee  to  re- 


TRUST  AND   TRUSTEE  419 

tain,  as  a  part  of  the  trust  estate,  if  he  deems  it 
wise  so  to  do,  probably  constitute  a  wasting  invest- 
ment; nevertheless  not  caring  to  have  any  part  of 
the  dividends  therefrom  capitalized,  I  direct  my 
said  trustee  and  his  successor  and  successors  in 
trust  to  regard  the  entire  dividends  paid  on  said 
shares  as  income  and  to  pay  the  same,  less  expenses 
chargeable  to  income,  to  the  beneficiary. 

I  think  it  probable  that  the  50  shares  of  the 
capital  stock  of  the  Calumet  and  Hecla  Mining 
Company  given  herein  by  me  in  trust  and  which  I 
have  directed  my  trustee  to  retain  as  a  part  of  the 
trust  estate,  if  he  deems  it  wise  so  to  do,  are  a 
wasting  security  or  investment.  I  hereby  direct  my 
trustee  and  his  successor  and  successors  in  that 
capacity  to  add  to  the  capital  of  the  trust  one  half 
of  all  the  dividends  paid  on  said  50  shares  and  the 
moneys  so  added  shall  be  a  part  of  the  capital  or 
principal  of  the  trust  and  subject  to  all  the  pro- 
visions relative  thereto.  I  direct  him  and  them 
to  pay  the  other  half  of  said  dividends  to  the 
beneficiary. 

I  think  it  probable  that  some  of  the  investments 
I  have  directed  my  said  trustee  to  hold  as  a  part 
of  the  trust  estate  are  of  a  wasting  nature,  viz. 
[enumerated].  However  that  may  be,  I  order  and 
direct  that  all  moneys  received  by  my  said  trustee 
and  his  successor  and  successors  as  dividends,  in- 
terest, and  profits  from  said  investments  or  from 


420  TESTAMENTARY   FORMS 

any  other  investments  that  at  the  time  of  the 
formation  of  the  trust  or  at  any  time  thereafter 
during  its  continuance  he  and  they  may  hold  as 
a  part  of  the  trust  estate,  shall  be  treated  as  fol- 
lows: that  one-third  thereof  shall  be  added  to  the 
principal  of  the  trust  and  form  a  part  thereof,  and 
the  other  two-thirds,  less  expenses  chargeable  to  in- 
come, shall  be  regarded  as  income  and  paid  to  the 
beneficiary. 

I  direct  my  said  trustee,  if  he  deems  best,  to  re- 
tain and  hold  in  the  trust  any  or  all  of  my  residuary 
assets,  as  he  may  receive  the  same;  and  I  exempt 
him  from  all  liability  in  the  event  of  their  deprecia- 
tion. If  any  of  these  assets  consist  of  wasting  in- 
vestments, such  as  Calumet  and  Hecla  Mining  Stock, 
patents,  copyrights,  etc.,  I  direct  my  trustee  to  pay 
three-quarters  of  the  net  income  or  dividends  derived 
therefrom  to  A.  B.,  the  cestuis  que  trust  above  named, 
and  to  add  the  remaining  one-quarter  to  the  principal 
of  the  trust.  My  trustee  may,  of  course,  at  any  time 
he  sees  fit  dispose  of  such  wasting  investments  or 
any  other  trust  investments  under  the  power  of 
sale  hereinbefore  given,  and  reinvest  the  proceeds 
as  a  part  of  the  principal  in  such  property  as  is 
suitable  for  trustees  to  invest  in. 

If  the  testator's  business  is  given  in  trust  (and 
this  generally  occurs  when  it  is  part  of  the  residuum) 
it  is  particularly  desirable  that  provision  should  be 
made  as  to  income  during  the  period  of  liquidating 


TRUST   AND   TRUSTEE  421 

and  winding  up.  After  the  usual  provisions  in  a 
will  the  residuum  may  be  given  in  trust  somewhat 
as  follows: 

All  the  rest,  residue  and  remainder  of  my  prop- 
erty, both  real  and  personal,  of  which  I  may  die 
seized  and  possessed  and  to  which  I  may  be  entitled 
at  the  time  of  my  decease,  and  wherever  the  same 
may  be  situated,  I  give  and  bequeath  to  my  said 
trustees  in  trust  to  be  administered  and  managed 
by  them  according  to  the  following  directions  and 
instructions.  The  larger  portion  of  said  rest,  resi- 
due and  remainder  consists  of  the  business  now  owned 
and  conducted  by  me  at,  etc.  It  is  my  estimate  that 
it  will  take  three  and  perhaps  five  years  from  the 
time  of  my  decease  to  completely  adjust  my  affairs, 
convert  my  assets  into  money  and  invest  the  same  in 
sound,  suitable  trust  investments.  But  whatever  that 
period  may  be,  I  direct  my  said  trustees  to  pay  to 
my  wife,  A.  B.,  ten  thousand  dollars  per  annum 
and  no  more  in  equal  quarterly  payments  for  a 
period  of  six  years  from  the  day  of  my  death,  and 
it  is  immaterial  whether  this  amount  be  paid  from 
principal  or  income.  At  the  expiration  of  said  six 
years,  my  affairs  having  been  liquidated  and  the 
residuum  having  been  converted  into  trust  invest- 
ments, I  direct  my  said  trustees  to  pay  the  entire 
net  income  of  the  trust  estate  to  my  said  wife  in 
quarterly  payments  during  her  life;  and  upon  her 
death,  whether  before  or  after  the  expiration  of  said 
six  years,  I  direct  that  the  trust  herein  established 


422  TESTAMENTARY   FORMS 

shall  terminate,  and  that  the  entire  principal  thereof, 
discharged  of  all  trust,  shall  go  to,  etc. 

Another  form  is  given  on  p.  578.  See  also  form  in 
case  of  winding  up  partnership  just  below,  p.  423. 

3.  There  seems  to  be  an  exception  to  the  rule  as  to 
wasting  investments  where  property  is  specifically 
bequeathed  or  where  the  intention  can  be  gathered 
from  the  whole  will  that  it  should  be  enjoyed  in 
specie.  If,  for  example,  the  will  contains  an  expres- 
sion authorizing  the  trustee  to  hold  the  property 
invested  just  as  he  received  it  from  the  testator,  it 
may  be  held  that  the  beneficiary  is  to  enjoy  it  in 
specie,  and  the  principal  may  be  greatly  reduced 
thereby.  See  Gray  v.  Siggers,  15  Ch.  D.  74;  Wood 
v.  Thomas,  [1891]  3  Ch.  482;  Healey  v.  Toppan, 
45  N.  H.  243,  261,  262,  and  cases  cited;  Clarkson 
v.  Clarkson,  18  Barb.  646,  648,  657;  2  Wms.  on 
Executors,  456  et  seq.  It  is  dangerous  to  insert  such 
a  provision  without  any  qualification. 

A  form  like  the  following  may  be  used: 

BEQUEST  NOT  TO  BE  ENJOYED  IN  SPECIE. 

Having  authorized  my  said  trustee  to  receive  my 
own  investments  from  the  executor  and  hold  them 
in  the  same  form  in  the  trust  estate,  I  now  declare 
that  it  is  not  my  intention  that  the  cestui  que  trust 
shall  enjoy  said  estate  in  specie;  but  I  authorize 
and  direct  my  trustee  to  determine  what  interest, 
profits,  dividends  etc.,  are  principal  and  what  are 
income  and  to  add  the  portion  so  determined  as 


TRUST  AND   TRUSTEE  423 

principal  to  the  principal  fund  and  to  pay  the  por- 
tion so  determined  as  income  to  the  cestui  que  trust. 
The  determination  and  action  of  my  said  trustee  in 
the  premises  shall  be  final  and  binding  upon  all 
parties  interested  in  the  trust. 

It  is  suggested  that  an  interest  hi  a  partnership 
may  be  given  as  follows: 

INTEREST  IN  PARTNERSHIP. 

All  the  rest,  residue  and  remainder  of  my  estate, 
which  consists  of  a  one-third  interest  in  the  property 
and  assets  of  the  house  located  and  doing  a  general 
merchandise  business  hi  the  city  of  Boston  under 
the  partnership  name  of  "X.  Y.  &  Company,"  I 
give,  devise,  and  bequeath  to  the  said  A.  B.  or  his 
successor,  as  executor,  for  the  benefit  of  my  wife 
C.  D.,  the  same  to  be  managed  according  to  the 
following  instructions: 

Whether  it  be  deemed  best  at  the  time  of  my 
decease  to  liquidate  the  affairs  of  the  partnership 
or  for  the  surviving  partners  to  purchase  my  inter- 
est therein  at  the  figure  and  upon  the  terms  named 
in  the  partnership  articles,  hi  either  event  a  con- 
siderable period  will  be  required,  the  termination 
of  which  I  fix  at  two  years  and  a  half  from  the  tune 
of  my  decease.  During  this  period  my  wife  is  to  be 
paid  by  my  said  executor  from  the  funds  and  assets 
received  by  him  from  the  partnership  five  thousand 
dollars  the  first  twelve  months,  five  thousand  dollars 
the  second  twelve  months,  and  twenty-five  hundred 


424  TESTAMENTARY   FORMS 

dollars  the  last  six  months.  At  the  termination  of 
said  two  years  and  a  half  the  balance  of  the  funds  and 
assets  received  by  my  said  executor  from  the  part- 
nership shall  be  regarded  as  capital  and  shall  form 
the  principal  of  the  trust;  and  the  said  A.  B.,  having 
credited  himself  in  his  account  as  executor  with  the 
payment  of  the  same  to  himself  as  trustee,  he  will 
then  charge  himself  as  trustee  conformably  to  the 
following  instructions:  he  is  to  pay  over  to  my  said 
wife  once  every  three  months  the  net  income  from 
principal  during  the  term  of  her  natural  life.  At 
her  decease  the  trust  shall  terminate  and  the  entire 
principal,  discharged  of  all  trust,  shall  be  equally 
divided  among  my  children,  then  living,  the  issue 
of  a  deceased  child  to  take  the  parent's  share  by 
right  of  representation.  If  there  be  no  children, 
or  the  issue  of  any  deceased  children,  then  living, 
I  direct  that  the  entire  principal,  discharged  of  all 
trust,  shall  go  to  any  person  or  persons,  corporation 
or  corporations,  whom  my  said  wife  C.  D.  may  name 
and  appoint  by  her  last  will.  Any  funds  or  assets 
received  by  my  said  trustee  after  the  expiration  of 
said  two  years  and  a  half,  either  from  the  partner- 
ship or  from  any  other  source,  are  to  be  added  to 
and  are  to  form  a  part  of  the  principal  and  are  to  be 
managed  and  disposed  of  as  above  directed.  The 
provision  for  my  wife,  whereby  she  is  to  be  paid  cer- 
tain sums  during  the  two  and  a  half  years  after  my 
decease,  during  which  period  she  is  to  receive  no 
other  payments  from  my  estate,  I  deem  the  most 
consistent  with  the  proper  settlement  of  my  affairs. 


TRUST   AND   TRUSTEE  425 

The  twelve  thousand  five  hundred  dollars  thus  to 
be  paid  her  is  intended  for  her  support  and  that  of 
my  children  during  the  said  two  years  and  a  half; 
if  inadequate,  I  trust  that  the  Judge  of  Probate  will 
grant  a  liberal  allowance. 

See  form  as  to  liquidating  a  business  just  above, 
p.  421. 

If  the  will  authorizes  the  trustees  to  change  in- 
vestments, and  directs  them  to  pay  the  residue  of 
the  income  to  the  tenant  for  life,  after  deducting 
all  proper  costs,  charges,  and  expenses,  brokerage 
would  undoubtedly  be  a  charge  upon  the  income, 
although  the  tendency  is  to  regard  all  commissions 
as  a  more  convenient  charge  upon  the  principal. 
Money  paid  for  real  estate  taken  by  right  of  emi- 
nent domain  is  probably  principal  and  not  income. 
Gibson  v.  Cooke,  1  Met.  75.  "In  a  purchase  or  sale 
of  real  estate  the  brokers'  commission  is  in  practice 
considered  as  part  of  the  price  of  the  property,  and 
so  is  generally  charged  to  principal,  and  would 
probably  be  allowed  so  generally."  Loring's  A 
Trustee's  Handbook  (3d  ed.),  142. 

Forms  like  the  following  may  be  used: 

PAYMENT  OF  COMMISSIONS,  ETC. 

I  direct  my  trustee  and  his  successors  to  pay 
all  commissions,  brokerage,  etc.,  on  sales  by  them 
of  either  the  real  or  personal  property  belonging 
to  the  trust  estate  from  principal  and  not  from 
income. 


426  TESTAMENTARY   FORMS 

I  direct  my  trustee  and  his  successors  to  pay  all 
commissions  on  sales  by  him  and  them  of  real  estate 
belonging  to  the  trust  estate  from  principal,  and  all 
commissions  on  sales  by  him  and  them  of  personal 
property  belonging  to  the  trust  estate  from  income. 

I  think  it  probable  that  before  the  termination 
of  this  trust  my  trustee  and  his  successor  and  suc- 
cessors will  find  it  necessary  to  vary  the  investments 
both  of  real  and  personal  property  as  authorized 
above.  I  do  not  think  it  advisable  that  in  making 
such  changes  he  or  they  should  be  amenable  to  a 
rigid  rule  as  to  broker's  charges.  Hence  I  authorize 
and  direct  him  and  them  to  pay  all  commissions  on 
the  sales  of  both  real  and  personal  property  belong- 
ing to  the  trust  estate  from  either  principal  or  income 
as  he  or  they  may  deem  expedient  and  best. 

It  is  sometimes  said  that  the  life  tenant  is  entitled 
to  all  the  net  interest  on  bonds  received  from  the 
testator's  estate,  or  bought  by  the  trustees  at  a 
price  above  par;  and  whatever  is  paid  for  accrued 
interest  on  the  bonds  bought  is  to  be  retained  from 
the  interest  subsequently  received.  It  is  also  held 
that  if  a  trustee  makes  an  investment  in  bonds,  pay- 
able at  a  day  certain  and  bought  at  a  premium,  he 
is  not  obliged  to  pay  the  entire  net  income  to  the 
tenant  for  life,  but  is  entitled  to  deduct  such  an 
amount  from  the  actual  interest  received  on  each 
bond  as  will,  by  successive  deductions,  make  good 
to  the  capital  the  amount  of  premium  paid  upon  the 


TRUST  AND   TRUSTEE  427 

original  purchase  of  the  bond,  without  regard  to 
the  market  value  of  the  bond  at  the  time  of  making 
such  deductions.  See  New  York  Life  Ins.  Co.  v. 
Baker,  165  N.  Y.  484.  In  Shaw  v.  Cordis,  143 
Mass.  443,  it  appeared  that  the  testator  gave  the 
residue  in  trust  during  the  lives  of  his  four  sons, 
directing  the  trustees  to  convert  the  same  into  three 
enumerated  kinds  of  securities,  called  stocks,  and 
"to  pay  over  all  the  dividends  and  income  of  said 
stocks  over  and  above  costs  and  charges  of  the 
trustees  ...  as  fast  as  they  shall  be  received,  in 
equal  proportions,  to  each  of  my  said  four  sons." 
The  trustees  bought  bonds,  included  hi  the  securities 
specified,  for  which  they  paid  a  premium.  It  was 
held  that  the  testator  intended  that  the  whole  in- 
come, after  conversion,  should  be  paid  to  his  sons, 
without  any  deduction  to  make  good  to  the  remain- 
der-men the  premium  which  it  might  be  necessary 
to  pay  in  buying  them. 

"Where  the  trust  property  consists  wholly  or 
partly  of  real  estate  Or  securities  the  testator  should 
consider  its  condition  and  income-bearing  properties 
with  reference  to  the  future  and  make  provision 
for  contingencies."  Remsen  on  Wills,  265. 

Forms  like  the  following  may  be  used: 

INTEREST  ON  BONDS. 

If  my  trustees  shall  receive  from  my  executors 
or  shall  thereafter  purchase  bonds  for  the  trust 
estate  at  a  price  in  excess  of  their  face  or  par  value, 
then  I  order  and  direct  that  any  loss  occasioned  by 


428  TESTAMENTARY   FORMS 

the  depreciation  in  value  of  said  bonds  or  by  the  pay- 
ment thereof  at  par  or  face  value  at  maturity  shall 
be  borne  by  and  taken  out  of  principal  and  not  by 
and  out  of  income.  But  if  any  other  bonds  should 
appreciate  in  value  between  the  tune  when  they  are 
received  or  purchased  and  the  tune  when  they 
are  disposed  of  or  are  paid  on  maturity,  then  I 
order  and  direct  that  the  increase  representing  such 
appreciation  shall  be  added  to  the  principal  and  shall 
form  a  part  thereof. 

I  confer  upon  my  trustees  absolute  authority  to 
pay  the  expenses  incidental  to  the  management  of 
the  trust  estate  out  of  principal  or  income  or  both, 
and  I  order  and  direct  that  if  there  is  any  loss  caused 
by  the  depreciation  in  value  of  any  bond  belonging 
to  the  trust  estate,  such  loss  shall  be  chargeable  to 
principal  and  not  to  income. 

As  it  is  probable  that  the  trust  I  have  created  will 
continue  for  many  years,  I  deem  it  best  to  clothe  my 
trustee  and  his  successor  and  successors  with  ab- 
solute discretion  relative  to  securities  which  he  or 
they  may  receive  from  my  executors  at  a  valuation 
above  their  face  or  par  value  or  which  he  or  they  may 
purchase  at  a  premium.  I  authorize  him  and  them 
to  pay  over  the  entire  interest  or  proceeds  of  coupons 
of  all  such  securities  to  the  beneficiaries  as  income 
or  add  a  portion  thereof  to  the  principal  of  the  trust, 
as  he  and  they  may  deem  best,  and  to  his  and  their 
decision  and  action  in  the  premises  the  beneficiaries 


TRUST   AND   TRUSTEE  429 

and  remainder-men  of  the  trust  shall  have  no  right 
to  object  and  from  the  same  no  right  to  appeal  to 
any  court  or  tribunal. 

It  is  stated  as  a  general  rule  that,  if  the  will  is 
silent  or  there  is  no  statute  on  the  subject,  dividends 
on  shares  of  stock  are  not  to  be  apportioned  but 
coupons  or  interest  upon  securities  accrue  from  day 
to  day  and  are  to  be  apportioned,  though  not  pay- 
able until  a  fixed  time.  See  2  Perry  on  Trusts,  §  556. 

In  some  States  there  are  statutes  providing  that 
a  person  entitled  to  an  annuity,  rent,  interest,  or 
income  given  by  will,  instrument,  etc.,  or  his  repre- 
sentative, shall  have  the  same  apportioned  if  his 
right  or  estate  therein  terminates  between  the  days 
upon  which  it  is  payable,  unless  otherwise  provided 
in  said  will  or  instrument;  but  no  action  shall  be 
brought  therefor  until  the  expiration  of  the  period 
for  which  the  apportionment  is  made.  In  most 
States,  however,  the  common  law  applies.  It  may 
be  said  generally  that  apportionment  arises  or  is 
appealed  to  hi  case  of  promissory  notes  of  individ- 
uals or  of  incorporated  companies,  whether  secured 
or  not  by  mortgage  or  pledge,  interest  upon  invest- 
ment bonds  not  due,  due  and  overdue,  rents  of  real 
estate,  which  become  payable  after  the  death  of 
the  testator,  dividends  from  the  profits  of  incor- 
porated companies,  and  taxes  when  the  life  tenant 
dies  within  a  year  after  the  day  when  the  property 
is  taxed  and  before  the  tax  is  paid. 

This  is,  perhaps,  an  unsatisfactory  matter  to  treat 


430  TESTAMENTAKY   FORMS 

in  most  wills,  but  forms  like  the  following  have 
occasionally  been  used: 

APPORTIONMENT  OF  INCOME. 

Interest  upon  the  bonds  herein  specifically  be- 
queathed in  trust  shall  be  apportioned  as  follows: 
so  much  thereof  as  shall  have  accrued  up  to  the  time 
of  my  decease,  though  not  then  due  or  payable, 
shall  fall  into  the  residuum  of  my  estate. 

Rents  and  dividends  arising  from  the  trust  in- 
vestments shall  be  regarded  as  accruing  from  day 
to  day  and  be  apportioned  in  respect  of  time  ac- 
cordingly. 

I  am  aware  that  it  is  difficult  to  lay  down  a  gen- 
eral rule  or  give  explicit  directions  as  to  apportion- 
ment, which  will  apply  equitably  and  satisfactorily 
in  all  cases.  I  therefore  authorize  and  direct  my 
trustee  and  his  successor  and  successors  at  the  ter- 
mination of  this  trust  to  use  his  and  their  discretion 
in  the  apportionment  of  interest  due  or  not  due 
upon  promissory  notes,  coupons  due  and  payable 
or  not  due  and  payable,  rents  due  and  not  due, 
dividends  declared  but  not  payable,  and  issues, 
interest,  accretions  and  profits  upon  and  growing 
out  of  any  other  properties  or  investments  belong- 
ing to  the  trust  estate.  My  said  trustee  and  his 
successor  and  successors  may  apportion  all  such 
interest,  coupons,  rents,  dividends,  issues,  accre- 
tions and  profits  as  they  deem  best  as  between  the 


TRUST  AND   TRUSTEE  431 

executor  or  administrator  of  the  beneficiary  and  the 
remainder-man,  or  they  may  give  all  such  coupons, 
rents,  etc.  to  said  executor  or  administrator  or  to 
the  remainder-man,  and  their  decision  and  action  in 
the  premises  shall  be  final  and  binding  upon  my  estate 
and  all  parties  concerned  or  interested  in  the  trust. 

6.  Disposition  of  Income  and  of  the  Fund  when  the 
Cestui  Que  Trust  Lives  in  a  Jurisdiction  other  than 
that  of  the  Testator. 

In  creating  a  trust  for  a  cestui  que  trust  who  lives 
in  a  jurisdiction  other  than  that  of  the  testator,  it 
may  be  well  for  the  attorney  to  ascertain  if  there  are 
any  restrictions  in  such  other  jurisdiction  imposed 
upon  beneficiaries.  This  may  be  so  in  the  case  of 
married  women,  so  that  it  may  be  well  to  insert  a 
provision  like  one  of  the  following: 

SOLE  AND  SEPARATE  USE. 

Any  moneys  or  legacies  given  and  payable  to  any 
woman  under  this  will  shall  be  for  her  sole  and 
separate  use  free  from  the  control  or  direction  or 
any  claim  of  her  husband  or  any  one  else. 

All  payments  by  the  provisions  of  this  will  to 
married  women  are  to  be  made  to  their  sole  and 
separate  use  and  upon  their  individual  receipts, 
and  are  to  be  free  from  the  control,  interference, 
direction,  or  debts  of  their  husbands. 

Other  forms  are  given  on  pp.  569,  575. 


432  TESTAMENTARY   FORMS 

In  one  State  at  least  it  is  provided  by  statute  that 
the  Probate  Court  may  authorize  the  trustee  to  pay 
over  the  fund  itself  to  a  trustee  appointed  by  the 
proper  court  in  another  State  or  country;  but  all 
the  cestuis  que  trust  and  the  trustee  must  assent, 
and  the  court  must  be  satisfied  that  the  laws  of 
such  other  State  or  country  secure  the  due  per- 
formance of  the  trust.  Mass.  Rev.  Laws,  c.  150, 
§§  27,  28. 

In  some  States  a  different  rule  of  taxation  applies 
when  the  beneficiary  lives  without  the  testators 
jurisdiction  from  that  which  applies  when  he  lives 
within  it.  It  may  be  well  to  bring  this  fact  to  the 
attention  of  the  testator. 

IV.    Termination  of  the  Trust. 
1.  The  Rule  against  Perpetuities. 

In  the  first  place,  care  should  be  taken  not  to 
violate  the  rule  against  perpetuities.  This  it  is 
almost  impossible  to  do,  if  the  testator  desires  that 
the  property  shall  not  vest  till  the  expiration  of  a 
long  period  of  time.  It  is  very  easy  to  make  pro- 
vision for  the  probable  termination  of  the  trust 
within  the  required  period,  and  still  to  make  it 
possible  that  the  estate  will  not  vest  within  that 
time.  If  real  estate  outside  the  testator's  juris- 
diction is  involved,  the  attorney  should  consult 
with  counsel  in  the  foreign  jurisdiction  as  to  draft- 
ing the  provision  so  as  not  to  violate  the  law  of 
perpetuities.  See  pp.  193  et  seq. 


TRUST   AND   TRUSTEE  433 

2.  Powers  of  Appointment. 

In  most  cases  where  the  testator  intends  that  the 
trust  shall  cease  with  the  life  of  the  cestui  que  trust, 
and  is  indifferent  as  to  the  disposition  of  the  prin- 
cipal, a  convenient  method  of  termination  is  by  a 
power  of  appointment,  to  be  exercised  by  the  cestui 
que  trust.  It  is  usual  to  provide  that  this  may  be 
done  by  any  instrument  under  his  hand  and  seal. 
If  the  trust  estate  is  a  large  one,  it  is  better  to  pro- 
vide that  only  a  last  will  shall  be  a  due  execution  of 
the  power;  and  then  there  will  be  an  instrument 
on  record  as  proof  of  the  execution.  It  should  also 
be  remembered  while  a  will  is  ambulatory  and  revo- 
cable during  the  life  of  the  testator,  that  if  an 
appointment  is  made  by  any  voluntary  conveyance 
under  the  hand  and  seal  of  the  appointee  of  the 
power,  it  is  probable  that  he  cannot  revoke  it,  unless 
such  power  of  revocation  is  reserved  in  the  instru- 
ment. See  Viney  v.  Abbott,  109  Mass.  300. 

A  provision,  however,  should  be  inserted  in  the 
will  as  to  termination  in  default  of  any  execution 
of  the  power.  Various  forms  creating  powers  and 
executing  the  same  will  be  found  on  pp.  68  et  seq. 

The  following  are  also  forms  of  execution: 

EXECUTION  OP  POWERS  OF  APPOINTMENT. 

I  direct  that  this  trust  shall  terminate  upon  the 
death  of  my  daughter,  A.  B.  and  that  my  trustee 
shall  then  pay  over,  transfer  and  deliver  the  entire 
principal  constituting  the  trust,  as  the  same  shall 
then  be,  in  such  manner  and  to  such  person  or  per- 


434  TESTAMENTARY   FORMS 

sons,  corporations,  organizations,  societies  or  as- 
sociations, as  she  may  direct  and  appoint  in  and  by 
her  last  will  and  testament,  made  and  executed  ac- 
cording to  the  laws  of  the  State  or  country  of  her 
domicile;  in  default  of  such  appointment,  to  the  issue 
of  the  said  A.  B.,  living  at  the  time  of  her  decease, 
per  capita,  and,  if  she  leave  no  issue  living  at  the 
time  of  her  decease,  then  to  such  person  or  persons 
who  at  the  tune  of  her  decease  would  be  entitled 
to  her  personal  estate  under  the  laws  of  the  State  of 
her  domicile  if  she  had  died  intestate. 

All  the  rest,  residue  and  remainder  of  my  estate, 
of  which  I  shall  die  seized  and  possessed  and  to  which 
I  may  be  entitled  at  the  time  of  my  decease,  both 
real  and  personal,  and  wherever  the  same  may  be 
situated,  I  give,  devise  and  bequeath  to  A.  B.  for 
and  during  the  term  of  his  natural  life;  and  I  give, 
devise  and  bequeath  the  same  after  his  decease  to 
such  of  his  children  and  grandchildren  and  to  their 
heirs  and  assigns  forever,  and  in  such  shares  or  por- 
tions, as  he  may,  by  his  last  will  and  testament 
duly  executed,  name,  designate  and  appoint;  and, 
in  default  of  such  appointment,  I  give,  devise  and 
bequeath  the  same  to  his  children  living  at  the  tune 
of  his  decease  and  the  issue  then  living  of  de- 
ceased children  and  their  heirs  and  assigns  forever, 
such  issue  to  take  the  parent's  share  by  right  of 
representation. 

A  form  of  a  limited  power  is  given  on  p.  75. 


TRUST   AND   TRUSTEE  435 

3.  Instalments. 

It  is  quite  frequent  for  the  testator  to  provide, 
when  the  cestui  que  trust  is  also  remainder-man,  for 
the  termination  of  the  trust  and  the  payment  of  the 
principal  to  the  cestui  que  trust  upon  his  attaining  a 
certain  age;  a  less  common,  but  in  some  cases  an 
equally  advantageous,  method  is  to  provide  for  the 
termination  by  instalments,  —  the  principal  to  be 
paid  to  the  cestui  que  trust  in  separate  shares  at  dif- 
ferent periods  of  time.  But  in  either  case  the  dispo- 
sition of  the  property  should  be  provided  for  hi  the 
event  of  the  death  of  the  cestui  que  trust  before  the 
trust  has  fully  terminated.  For  forms  see  pp.  525, 
545,  557. 

4.  One   Fund   Chargeable   with  Annuities,    or   as 
Many  Funds  as  there  are  Cestuis  Que  Trust. 

Where  the  testator  proposes  to  create  a  trust  for 
the  benefit  of  more  than  one  cestui  que  trust,  it  is  for 
him  to  consider  whether  he  will  establish  one  entire 
fund,  charging  annuities  upon  it  (see  p.  528),  or  giv- 
ing each  cestui  que  trust  a  certain  portion  of  the  in- 
come; or  whether  he  will  establish  as  many  different 
trusts  as  there  are  cestuis  que  trust,  —  each  estate 
to  be  separate  and  distinct  from  the  other.  For 
form  see  p.  521.  The  former  is  the  more  convenient 
method  in  most  States,  as  only  one  bond  need  be 
given  and  one  set  of  accounts  kept.  But  care  should 
be  exercised  hi  such  case  to  provide  for  the  proper 
termination  of  the  trust. 


436  TESTAMENTARY   FORMS 

The  easiest  way  is  to  provide  that  as  each  cestui 
que  trust  dies  the  trust  shall  terminate  as  to  a  certain 
share  or  amount  of  the  principal.  But  if  it  is  the 
testator's  intention  that  the  cestuis  que  trust  shall 
take  the  income  for  their  joint  lives  and  the  life  of 
the  survivor,  or  that  they  shall  enjoy  in  succession, 
that  intention  should  appear;  and  the  trust  will 
terminate  and  the  gift  over  take  effect  upon  the 
death  of  the  last  cestui  que  trust.  For  form  see  p.  528. 

Testators  frequently  emphasize  the  fact  that  trust 
estates  are  to  be  separate  and  that  separate  accounts 
are  to  be  kept.  For  forms  see  pp.  523,  568,  576. 

5.  Whether  "Survivor"  is  to  be  Changed  into 
"Other."  Accruing  Shares. 

"Whether  the  word  'survivor'  is  to  receive  a  con- 
struction accordant  with  its  strict  and  proper  accepta- 
tion, or  is,  by  a  liberal  interpretation,  to  be  changed 
into  'other,'  is  a  point  which  has  been  variously 
decided";  but  "we  are  now  taught  by  a  series  of 
decisions  which  outweigh  any  opposing  dicta  or 
opinions  that  the  word  '  survivor,'  like  every  other 
term,  when  unexplained  by  other  parts  of  the  will, 
is  to  be  interpreted  according  to  its  strict  and  literal 
meaning."  2  Jarman  on  Wills  (6th  Am.  ed.),  632. 

For  example,  a  testator  gives  property  in  trust,  the 
income  to  be  paid  to  his  wife  for  life,  and  after  her 
death  the  principal  to  be  divided  equally  among  his 
four  sons,  A.,  B.,  C.,  and  D.;  and  provides  that  if  any 
of  them  shall  die  in  the  lifetime  of  the  mother  his 
share  shall  go  to  his  issue,  but  if  any  of  them  shall 


TRUST   AND    TRUSTEE  437 

die  before   the   age   of  twenty-one  years   without 
issue,  his  share  shall  go  to  the  " survivors." 

A.  dies  leaving  children.  B.  dies  under  twenty-one, 
without  issue.  Are  the  children  of  A.  entitled  to  any 
part  of  the  share  of  B.?  It  is  natural  to  suppose  the 
testator's  intention  to  be  that  the  children  shall  take 
the  share  which  would  have  accrued  to  the  parent,  if 
living;  but,  instead  of  saying  so,  he  gives  such  share 
to  the  "  survivors."  Consequently  the  share  of  B. 
goes  to  C.  and  D.  The  testator's  intention  should 
therefore  clearly  appear.  2  Jarman  on  Wills  (6th 
Am.  ed.),  632  et  seq.,  702;  Hayes  &  Jarman's 
Concise  Forms  of  Wills  (llth  ed.),  274  et  seq.  See 
Re  Walker's  Estate,  12  Ch.  D.  205.  A  will  provided 
that  on  the  death  of  the  beneficiary,  a  sister,  the 
estate  was  to  go  to  three  brothers.  It  then  stated: 

In  case  either  of  my  brothers  die  before  my  sister 
,  leaving  issue  surviving  her,  then  such  repre- 


sentative issue  are  to  take  the  share  of  the  deceased 
parent,  otherwise  such  share  of  the  brother  deceased 
without  surviving  issue  is  to  go  to  my  surviving 
brothers  and  the  representative  issue  of  either  who 
have  deceased  leaving  issue  surviving  said . 

The  following  form  relates  to  survivorship  on 
termination  of  a  trust: 

I  order  and  direct  that  upon  the  death  of  said 
A.  B.  (the  life  tenant)  the  trust  shall  terminate  and 
the  entire  principal  thereof,  discharged  of  all  trust, 


438  TESTAMENTARY   FORMS 

shall  go  and  be  paid  to  my  four  sons,  C.  D.,  E.  F., 
G.  H.  and  I.  J.,  in  equal  shares;  and,  if  any  of  them 
shall  die  before  the  said  A.  B.,  leaving  issue  living 
at  the  time  of  the  death  of  said  A.  B.,  such  issue 
shall  receive  the  share  the  parent  would  be  entitled 
to  if  living;  but  if  any  of  them  so  dying  shall  leave 
no  issue  living  at  the  time  of  the  death  of  said  A.  B., 
the  share  of  such  one  so  dying  shall  be  paid  to  the 
survivors  of  my  four  sons,  C.  D.,  E.  F.,  G.  H.  and 
I.  J.,  and  the  issue  of  any  of  them  who  may  have 
deceased,  such  issue  to  take  the  parent's  share  by 
right  of  representation. 

"The  general  rule  is  that  where  distinct  legacies 
are  given  with  survivorship,  the  clause  of  survivor- 
ship, unless  extended  by  particular  words,  attaches 
only  to  the  original  shares,  and  does  not  affect  the 
accruing  shares.  But  an  exception  to  this  rule  has 
been  admitted,  where  the  disposition  is,  not  of  sepa- 
rate legacies,  but  of  one  aggregate  fund,  which  the 
testator  meant  should  remain  an  aggregate  fund, 
and  should  not  be  broken  into  fragments,  if  some 
of  the  persons,  to  whom  interests  in  it  were  given, 
happen  to  die."  2  Williams  on  Executors  (Am.  ed.), 
508. 

A  testator  gave  the  residue  of  his  estate  in  trust, 
the  income  to  be  equally  divided  among  his  children, 
naming  them,  and,  in  case  of  the  death  of  either  with- 
out issue,  then  equally  among  the  survivors;  but  in 
case  of  the  death  of  either  leaving  issue,  his  share  of 
the  capital  to  be  divided  among  such  issue.  It  was 


TRUST   AND   TRUSTEE  439 

held  that  no  part  of  the  estate  became  distributable 
as  undevised  estate  upon  the  death  of  one  of  the 
children  without  issue,  but  that  the  rights  of  the 
survivors  and  issue  in  the  capital  as  well  as  the  in- 
come of  the  fund  became  proportionally  enlarged. 
Cook  v.  Smith,  101  Mass.  341. 

6.  Termination  Before  all  the  Purposes  of  the  Trust 
have  been  Accomplished. 

In  some  cases  courts  can  decree  the  termination 
of  a  trust  when  all  the  parties  are  capable  of  acting 
and  assent  thereto,  although  all  its  purposes  may  not 
have  been  accomplished;  as  where  property  was 
given  in  trust,  the  income  to  be  paid  to  the  testator's 
wife  for  the  maintenance  of  his  children,  the  latter 
having  afterwards  all  died  without  issue.  Bowditch 
v.  Andrew,  8  Allen,  339.  Or  where  the  direction  was 
to  deposit  the  residue  in  a  bank  to  be  appropriated 
by  the  executors  for  the  relief  of  the  testator's  heirs, 
if  they  should  need  assistance.  Smith  v.  Harrington, 
4  Allen,  566.  So  probably  where  the  same  person 
becomes  absolutely  entitled  to  both  the  income  and 
principal. 

Of  course,  if  justice  requires  or  the  testator  directs 
that  the  legal  and  equitable  estate  shall  be  kept 
distinct,  there  will  be  no  merger  by  their  merely  com- 
ing together  in  one  person.  On  this  subject  see 
Loring's  A  Trustee's  Handbook  (3d  ed.),  173. 

In  all  cases  of  contingent  remainders  the  trust 
must,  of  course,  be  preserved  until  the  death  of 
the  life  tenant,  or  until  the  happening  of  some 


440  TESTAMENTARY   FORMS 

other   contingent   event.     Smith   v.  Harrington,  4 
Allen,  566,  569. 

7.  General  Points  as  to  Termination. 

If  the  trust  consists  of  real  estate,  the  trustees  will 
be  required  to  make  partition  among  the  remainder- 
men only  when  authorized  by  the  most  positive 
language.  And  such  authority  would  probably 
never  be  inferred  from  a  mere  direction  to  convey  to 
them  as  tenants  in  common.  In  some  jurisdictions 
there  are  statutes  which  provide  that,  if,  by  a 
written  instrument,  a  trust  estate  is  to  be  distrib- 
uted in  whole  or  in  part  among  heirs  or  next  of  kin 
of  a  person  or  persons,  or  to  a  class  of  persons,  the 
Probate  Court  may,  upon  petition  after  notice,  order 
the  trustee  to  convert  the  estate,  real  and  personal 
or  either,  into  cash,  and  distribute  it  among  those 
entitled. 

Authorizing  a  trustee  to  make  partition  of  real 
estate  upon  the  termination  of  the  trust  is  a  rather 
delicate  undertaking.  However,  a  form  like  the 
following  may  be  sufficient: 

PARTITION  OF  REAL  ESTATE. 

I  authorize  and  direct  my  trustees  and  their  suc- 
cessors upon  the  termination  of  this  trust  to  divide 
and  allot  the  real  estate  among  the  remainder-men 
in  shares  and  interests  as  equal  and  just  as  possible; 
and  to  this  end  I  authorize  them  (a)  to  fix  values, 
(b)  arrange  and  divide  into  parcels  (c)  set  apart 


TRUST   AND   TRUSTEE  441 

any  parcel  or  parcels  in  common  to  two  or  more 
remainder-men,  if  they  deem  such  course  advisable 
or  necessary  (d)  make  divisions  and  partitions  equal 
by  using  any  portion  of  the  personal  property  belong- 
ing to  the  trust,  and  (e)  execute  and  deliver  to  the 
remainder-men  such  quit-claim  deeds  as  the  circum- 
stances of  the  case  or  cases  may  require;  and  the 
partitions,  allotments  and  payments  so  made  shall 
be  absolutely  binding  upon  all  parties  in  interest. 

Trustees  are  often  authorized  to  terminate  the 
trust  in  the  exercise  of  a  reasonable  discretion,  as  in 
the  following  form: 

TERMINATION  IN  DISCRETION  OF  TRUSTEE. 

To  pay  over  the  net  income  thereof  to  my  son 
A.  B.  for  and  during  the  term  of  his  natural  life; 
provided,  however,  if  at  any  tune  during  the  con- 
tinuance of  this  trust  my  said  trustee  or  his  successor 
or  successors  feels  assured  that  the  life  of  the  said 
A.  B.  is  exemplary  and  is  of  opinion  that  the  said 
A.  B.  is  fully  capable  of  managing  property  with  care 
and  prudence,  he  or  they  may  convey  and  transfer 
to  the  said  A.  B.  the  entire  principal  constituting  the 
trust,  discharged  of  all  trust,  to  be  his  absolutely. 
But  if  the  said  trustee  or  his  successor  or  successors 
concludes  not  to  exercise  his  or  their  discretion,  but 
to  continue  the  trust  during  the  life  of  A.  B.,  then  I 
direct  that  the  trust  shall  terminate  upon  his  death 
and  that  the  said  trustee  or  his  successor  or  successors 
shall  convey  and  transfer  the  entire  principal  con- 


442  TESTAMENTARY   FORMS 

stituting  the  same  to  the  person  or  persons  and  in 
such  proportions  as  the  statutes  of  this  State  would 
distribute  the  same,  if  the  entire  principal  were  the 
property  of  A.  B.  and  he  had  died  intestate. 

Another  form  is  given  on  p.  526. 

Testators  sometimes  provide  that  a  trust  is  to 
terminate  in  the  alternative,  as  upon  the  death  of 
the  cestui  que  trust  (a  married  woman),  or  upon  the 
death  of  her  husband,  she  being  still  living.  In 
the  last  event  a  provision  may  be  inserted  for  the 
principal,  discharged  of  all  trust,  to  be  paid  to  the 
cestui  que  trust. 

Sometimes  wills  contain  a  provision  as  to  delegat- 
ing a  trust  and  revoking  the  same,  as  in  the  following 
form  taken  from  an  actual  will.  Such  a  provision 
is  doubtful  both  from  a  legal  and  practical  stand- 
point. 

I  authorize  and  empower  the  trustees  of  any  trust 
estate  created  by  this  my  will,  at  any  time  and  from 
time  to  time  to  deposit  in  the  Trust  Company, 

or  in  any  other  Trust  Company  of  the  City  of,  etc., 
or  elsewhere,  to  their  credit,  but  without  responsi- 
bility to  them,  any  part  of  the  share  of  my  estate 
which  shall  be  held  by  them  in  trust,  such  company 
to  hold  and  dispose  of  the  same  in  accordance  with 
the  terms  of  the  trust,  unless  before  the  termination 
thereof  the  trustees  shall  take  the  same  again  into 
their  actual  possession. 


TRUST   AND   TRUSTEE  443 

It  may  be  well  in  some  cases  to  provide  for  the 
termination  of  a  trust  by  the  purchase  of  an  annuity, 
as  follows: 

PURCHASE  OF  AN  ANNUITY. 

If  my  said  son  A.  B.  shall  die  before  arriving  at  the 
age  of  fifty  years,  then  I  declare  that  the  trust  shall 
terminate  and  that  my  said  trustee  and  his  successor 
or  successors  shall  pay  over  the  entire  principal, 
discharged  of  all  trust,  to,  etc.  But  if  my  said  son 
A.  B.  shall  attain  the  age  of  fifty  years,  I  also  declare 
that  the  trust  shall  terminate,  and  I  direct  my  said 
trustee  and  his  successor  and  successors  to  turn  the 
entire  principal  constituting  the  trust  into  money 
and  pay  over  the  same  to  some  sound  and  reputable 
life  insurance  company  upon  the  agreement  that, 
in  consideration  of  its  receiving  and  keeping  the 
same  as  its  property  absolutely,  it  will  pay  the  said 
A.  B.  an  annuity  during  his  life. 

A  testator,  having  appointed  his  wife  and  four 
sons  executors  of  and  trustees  under  his  will,  pro- 
vided for  the  termination  of  the  trust  upon  the 
death  of  the  last  survivor  of  the  acting  trustees,  as 
follows : 

TERMINATION  ON  DEATH,  ETC.,  OF  TRUSTEE. 

And  for  the  purpose  of  guarding  against  the  con- 
tingency of  any  unsuitable  person  being  appointed 
trustee  of  any  or  either  of  the  trust  funds  herein- 
before created,  I  direct  as  to  each  of  said  trust  funds 


444  TESTAMENTARY   FORMS 

that,  in  case  of  the  death,  disability  or  resignation 
of  any  of  the  trustees  hereinbefore  appointed,  the 
trust  shall  vest  hi  and  be  executed  by  the  others  of 
those  whom  I  have  named,  and  upon  the  death  of 
the  last  survivor  of  the  acting  trustees  during  the 
continuance  of  the  trust,  the  trust  shall  cease  and 
the  entire  trust  fund  be  paid  to  the  beneficiary 
entitled  to  the  income. 

The  objection  to  a  provision  like  the  above  is  that 
on  the  death  of  the  last  trustee  a  new  trustee  would 
have  to  be  appointed  to  wind  up  the  estate. 

8.  Resulting  Trusts. 

In  providing  for  the  termination  of  a  trust,  the  law 
of  resulting  trusts  should  be  borne  in  mind. 

It  is  well  settled  that  if  a  will  fails  to  dispose  of 
the  whole  of  the  testator's  property,  real  or  personal, 
the  whole  of  the  undisposed-of  interest,  whether  legal 
or  equitable,  devolves  to  the  person  on  whom  the  law, 
in  the  absence  of  any  disposition,  casts  that  species 
of  property.  1  Jarman  on  Wills  (6th  Am.  ed.),  558. 

Hence,  if  the  trust  fail  by  the  extinction  of  the 
cestui  que  trust,  where  the  devise  is  to  the  trustee  for 
a  specific  purpose  only,  he  holds  the  property  "not 
for  his  own  benefit,  but  for  the  devisor's  heirs-at-law, 
as  a  resulting  trust,  and  is  answerable  to  them  for 
it."  Easterbrooks  v.  Tillinghast,  5  Gray,  17,  21. 

"The  same  reason  applies  when  the  property  de- 
vised is  more  than  is  needed  to  support  the  trust. 


TRUST   AND   TRUSTEE  445 

The  support  of  the  trust  being  the  sole  purpose  for 
which  the  devise  is  made,  if  there  is  a  surplus  beyond 
what  is  needed  for  that  purpose,  it  is  property  not 
disposed  of  by  the  will,  and  descends  to  the  heir-at- 
law  or  distributee,  discharged  of  all  trusts,  without 
in  any  way  defeating  the  intention  of  the  testator." 
Sears  v.  Hardy,  120  Mass.  524,  542. 

The  same  rule  applies  where  the  trust  is  not  suffi- 
ciently defined  to  enable  the  court  to  carry  it  out. 

9.  Heirs-at-Law,  Next  of  Kin. 

The  careless  use  of  these  words  has  produced  much 
litigation.  In  many  States  heirs-at-law  are  con- 
strued to  mean  those  who  are  heirs  of  real  estate, 
and  may  include  a  husband  or  wife  as  a  statutory 
heir.  The  period  at  which  " heirs-at-law"  and  "next 
of  kin"  are  to  be  determined,  whether  at  the  tune 
of  the  death  of  the  testator  or  of  the  life  tenant,  or 
at  some  other  period,  should  clearly  appear. 

"It  is  the  duty  of  the  executor  or  administrator 
of  a  deceased  trustee  to  settle  the  decedent's  trust 
accounts,  and  his  estate  is  liable  for  breaches  of  trust 
committed  in  his  lifetime.  The  guardian  of  an  insane 
person  would  stand  in  the  same  position  as  the  execu- 
tor of  a  deceased  trustee."  Loring's  A  Trustee's 
Handbook  (3d  ed.),  20. 

GUARDIAN 

A  will  which  merely  appoints  a  guardian  without 
disposing  of  property  is  good.  Rood  on  Wills, 


446  TESTAMENTARY   FORMS 

§  68.  The  statutes  of  nearly  all  States  provide  for 
testamentary  guardianship  of  minor  children,  and 
in  most  cases  they  must  be  the  minor  children  of  the 
testator  himself.  It  is  generally  provided  that  the 
appointment  must  be  subject  to  the  approval  of 
the  Probate  Court,  and  that  the  guardianship  is 
to  continue  during  the  minority  of  the  child  or  for 
a  less  period. 

It  is  often  remarked  that  as  the  trusts  of  admin- 
istration and  guardianship  are  incompatible,  they 
ought  not  to  be  in  the  same  person,  especially  while 
the  estate  is  in  the  process  of  settlement;  but  it  is 
doubtful  whether  in  most  cases  any  wrong  is  likely 
to  be  done  by  the  conjunction.  See  Ernst's  Law 
of  Married  Women,  193. 

Nearly  any  one  can  be  a  guardian,  but  it  is  obvious 
that  the  management  of  the  property  of  a  minor 
should  be  intrusted  only  to  a  person  of  integrity, 
discretion,  and  business  experience.  In  some  juris- 
dictions safe  deposit,  loan,  or  trust  companies  are 
authorized  by  statute  to  act  as  guardians.  Married 
women  are  empowered  by  statute  to  be  guardians 
without  the  assent  or  interference  of  their  husbands. 
A  single  woman  also  nearly  everywhere  may  be 
a  guardian,  but  upon  marriage  it  is  probable  that 
her  sureties  would  be  entitled  to  be  released  and 
that  she  would  be  required  to  furnish  a  new 
bond. 

Statutes  frequently  declare  that  the  father  of 
the  minor,  if  living,  and,  in  case  of  his  death,  the 
mother,  shall  be  entitled  to  the  custody  of  the  person 


GUARDIAN  447 

of  the  minor  and  to  the  care  of  his  education,  while 
the  guardian  should  have  the  care  and  management 
of  the  ward's  estate.  So  statutes  often  provide  that 
the  power  of  appointment  of  a  guardian  by  will 
shall  in  the  first  instance  be  in  the  father  of  the 
minor,  or,  if  he  has  died,  without  exercising  the 
power,  then  in  the  mother. 

Statutes  provide  that,  if  the  testator  so  orders, 
the  guardian  shall  not  be  required  to  give  sureties 
on  his  bond,  and  also  that,  if  there  are  two  or  more 
acting  jointly  as  guardians,  they  may  give  either 
separate  or  joint  bonds. 

It  should  be  noted  that  a  guardianship  differs 
from  a  trusteeship  in  this,  that  hi  the  former  case  the 
ward  is  generally  both  remainder-man  and  benefi- 
ciary, so  that  the  keeping  of  the  guardian's  accounts 
is  a  very  simple  matter.  Generally,  interest  com- 
puted for  a  year  is  added  to  the  principal;  then  the 
expenses  are  deducted  from  the  amount,  and  the 
balance  forms  the  new  capital  upon  which  the  next 
year's  interest  is  to  be  computed,  and  so  on  from 
year  to  year.  Boynton  v.  Dyer,  18  Pick.  1,  8.  Hence 
questions  relating  to  principal  and  income  rarely 
arise. 

Of  course  the  appointment  of  a  guardian  hi  one 
State  gives  him  no  authority  and  has  no  effect  hi 
another.  Before  giving  realty  out  of  the  State  to 
a  guardian  for  a  ward,  the  law  of  the  jurisdiction 
should  be  ascertained. 

"Guardians  are  not,  like  executors,  administrators, 
or  trustees,  invested  with  a  legal  title  to  the  property 


448  TESTAMENTARY   FORMS 

which  is  placed  under  their  care;  but  they  have  a 
naked  power,  not  coupled  with  an  interest.  The 
debts  of  the  ward  remain  his;  so  that,  though  he  has 
no  power  to  pay  them,  yet  he,  and  not  the  guardians, 
must  be  sued  upon  them ....  It  is  true  that  they 
may  make  contracts  in  their  own  names,  and  such 
contracts  bind  themselves,  but  do  not  bind  either 
the  ward  or  his  estate."  Hicks  v.  Chapman,  10 
Allen,  463,  464.  Unauthorized  dealing  with  the 
ward's  estate  is,  therefore,  a  delicate  matter. 

It  is  provided  by  statute  in  many  jurisdictions 
that  the  Probate  Court  may  on  application  au- 
thorize or  require  the  guardian  to  sell  and  transfer 
any  personal  property  held  by  him  as  guardian,  and 
to  invest  the  proceeds  thereof  and  all  other  money 
in  his  hands,  in  such  manner  as  may  be  most  for  the 
interest  of  all  concerned  and  may  give  directions 
for  the  management  of  the  estate  in  the  hands  of 
the  guardian.  So,  if  the  personal  property  is  in- 
sufficient to  pay  the  debts  of  the  ward,  the  guardian 
may  be  licensed  to  sell  the  ward's  real  estate  for 
that  purpose. 

For  convenience  and  safety,  therefore,  it  would 
seem  to  be  advisable  to  give  the  guardian  all  the 
powers  of  a  trustee  or  make  him  an  absolute  trustee 
until  the  minor  attains  to  the  age  of  twenty-one 
years,  including  a  full  power  to  sell,  invest,  and 
reinvest  the  estate  from  time  to  tune,  as  the  trustee 
may  deem  wise.  A  convenient  method  is  to  give 
the  property  to  trustees  to  pay  the  income  to  the 
mother  to  apply  for  the  maintenance  and  support 


GUARDIAN  449 

of  the  children  during  infancy,  or  in  case  she  neglects 
so  to  do  to  apply  it  themselves.  Sometimes  the 
property  is  given  to  a  trustee  to  apply  for  the  edu- 
cation and  maintenance  of  a  minor,  without  appoint- 
ing any  guardian  at  all,  and  the  minor  is  commended 
by  the  testator  to  the  care  and  affection  of  a  rela- 
tive. It  is  often  both  convenient  to  the  trustees 
and  useful  to  the  objects  to  authorize  the  payment  or 
delivery  of  pecuniary  or  specific  legacies  of  small 
amounts  or  value  to  the  parents  of  infant  legatees, 
with  a  direction  that  their  receipts  shall  discharge 
the  trustees. 

As  to  compensation  of  a  guardian,  see  pp.  371  et 
seq.  As  to  investments,  see  pp.  383  et  seq.  As  to 
compromises,  see  pp.  348  et  seq.  A  great  deal  of  the 
law  hereinbefore  given  relative  to  trustees  applies 
equally  to  guardians. 

Forms  like  the  following  are  generally  used: 

APPOINTMENT  OF  GUARDIANS. 

I  constitute  and  appoint  A.  B.  the  guardian  of 
my  daughter  C.  D.,  and  release  him  from  giving  a 
surety  or  sureties  upon  his  official  bond.  I  desire 
my  said  guardian  to  have  a  parental  care  of  and 
oversight  over  the  said  C.  D.  during  minority. 

I  name  and  appoint  my  wife  A.  B.  the  guardian 
of  our  minor  children  C.  D.  and  E.  F.,  and  release 
her  from  giving  any  bond  or  other  security  for  the 
discharge  of  her  duties  as  such  guardian. 


450  TESTAMENTARY   FORMS 

I  purposely  appoint  no  guardian  of  my  children 
A.  B.  and  C.  D.,  as  my  trustee  as  hereinbefore  pro- 
vided is  to  apply  the  income  of  the  trust  for  their 
education  and  for  their  maintenance  and  support 
until  they  reach  majority.  But  I  commend  my  said 
children  to  the  considerate  care  and  affection  of 
their  aunt  E.  F.,  with  whom  they  have  lived  since 
the  death  of  their  mother,  trusting  that  she  will 
continue  her  kindly  counsel  and  oversight. 

All  money  given  by  this  will  for  the  benefit  of 
any  minor  may  in  the  discretion  of  the  trustee  be 
paid  by  him  to  the  guardian  or  parent  or  parents 
of  such  minor,  and  the  trustee  shall  not  be  required 
to  see  to  the  application  thereof. 

Other  forms  will  be  found  on  pp.  519,  553. 


CHAPTER   XVII 

PUBLIC  CHARITIES 

IT  seems  almost  impossible  to  lay  down  general 
rules  as  to  gifts  for  charitable,  educational,  religious, 
or  like  purposes,  as  statutes  in  the  different  states 
have  so  modified  the  provisions  of  the  original 
English  statute  of  charitable  uses. 

Statutes  in  different  jurisdictions  — 

Limit  the  power  of  charitable  corporations  to  take. 

Limit  the  power  of  a  testator  to  give. 

Forbid  a  charitable  corporation  to  take  more 
than  a  certain  amount  fixed  by  law. 

Declare  charitable  bequests  void  unless  given 
by  will  executed  a  certain  period  before  the  death 
of  the  testator. 

Abolish  charitable  gifts  altogether. 

In  drawing  a  will  the  attorney  cannot  be  too  care- 
ful in  examining  the  law  of  the  testator's  jurisdic- 
tion as  to  charitable  gifts. 

Although  the  doctrine  of  charities  existed  and 
gave  rise  to  much  legislation  long  before  the  time  of 
Elizabeth,  yet  the  statute  43  Elizabeth,  c.  4,  is  com- 
monly called  the  statute  of  charitable  uses.  In  it 
are  given  the  following  charitable  objects  and  pur- 
poses: Relief  of  aged  and  impotent  and  poor  people; 

451 


452  TESTAMENTARY   FORMS 

maintenance  of  sick  and  maimed  soldiers  and  mar- 
iners; schools  of  learning;  free  schools;  scholars 
in  universities;  repairs  of  bridges,  ports,  havens, 
causeways,  churches,  sea-banks,  and  highways; 
education  and  preferment  of  orphans;  relief,  stock, 
or  maintenance  for  houses  of  correction;  marriages 
of  poor  maids;  supportation,  aid,  and  help  of  young 
tradesmen,  handicraftsmen,  and  persons  decayed; 
relief  or  redemption  of  prisoners  or  captives;  aid 
or  ease  of  any  poor  inhabitants  concerning  payment 
of  fifteens,  setting  out  of  soldiers,  and  other  taxes. 

The  following  definition  of  a  charity  is  regarded  as 
one  of  the  best : 

"A  charity  in  the  legal  sense  may  be  defined  as  a 
gift,  to  be  applied  consistently  with  existing  laws,  for 
the  benefit  of  an  indefinite  number  of  persons,  either 
by  bringing  their  minds  or  hearts  under  the  influence 
of  education  or  religion,  by  relieving  their  bodies 
from  disease,  suffering,  or  constraint,  by  assisting 
them  to  establish  themselves  in  Fife,  or  by  erecting 
or  maintaining  public  buildings  or  works,  or  other- 
wise lessening  the  burdens  of  government.  It  is 
immaterial  whether  the  purpose  is  called  charitable 
in  the  gift  itself,  if  it  is  so  described  as  to  show  that 
it  is  charitable  in  its  nature."  Jackson  v.  Phillips, 
14  Allen,  539,  556. 

"A  good  charitable  use  is  'public,'  not  hi  the  sense 
that  it  must  be  executed  openly  and  hi  public,  but 
in  the  sense  of  being  so  general  and  indefinite  in  its 
objects  as  to  be  deemed  of  common  and  public  bene- 
fit. Each  individual  immediately  benefited  may  be 


PUBLIC   CHARITIES  453 

private,  and  the  charity  may  be  distributed  in  pri- 
vate and  by  a  private  hand.  It  is  public  and  general 
in  its  scope  and  purpose,  and  becomes  definite  and 
private  only  after  the  individual  objects  have  been 
selected."  Saltonstall  v.  Sanders,  11  Allen,  446, 
456. 

In  most  jurisdictions  it  is  believed  that  the  fol- 
lowing principles  are  well  established: 

That  any  purpose  is  charitable  in  the  legal  sense 
of  the  word  which  is  within  the  principle  and  reason 
of  the  statute,  although  not  expressly  named  in  it; 
and  objects  have  been  upheld  as  charities  which 
the  statute  neither  mentions  nor  distinctly  refers  to. 

That  if  the  persons  or  body  beneficially  interested 
in  the  use  are  definite  and  certain,  it  is  not  a  pub- 
lic charity,  although  the  trust  may  be  exclusively 
restricted  to  religious  uses  alone. 

That  it  is  immaterial  where  the  beneficiaries  re- 
side; and  the  fact  that  the  charity  is  to  be  admin- 
istered in  a  foreign  country  does  not  of  itself  render 
it  invalid. 

That  if  the  charitable  bequest  is  otherwise  valid, 
it  will  not  fail  simply  because  it  cannot  take  effect 
immediately  for  want  of  proper  objects  or  trustees, 
or  of  enabling  acts  of  the  legislature  or  of  the 
executive.  A  charitable  bequest  in  trust  by  a  resi- 
dent of  Massachusetts  to  a  town  in  another  State 
was  held  not  void,  because  the  town  at  the  tune  the 
bequest  was  made  was  incapable,  under  the  laws  of 
that  State,  of  taking  the  trust;  and  it  was  ordered 
that  the  fund  be  paid  over  to  the  town  upon  its 


454  TESTAMENTARY   FORMS 

being  enabled,  by  a  subsequent  act  of  the  legislature 
of  the  other  State,  to  administer  the  trust  according 
to  the  will.  Fellows  v.  Miner,  119  Mass.  541. 

A  testator  in  creating  a  charity  should  be  informed 
that  if  at  any  tune  the  trust  becomes  impossible  of 
execution  the  doctrine  of  cy  pres  will  be  resorted  to, 
and  a  court  of  equity  will  order  the  charitable  pur- 
pose to  be  executed  as  nearly  as  possible  according 
to  the  testator's  expressed  intent.  For  able  dis- 
cussion of  this  subject  see  Jackson  v.  Phillips,  14 
Allen,  539,  573,  599. 

Great  care  should  be  used  in  providing  for  trus- 
tees. Generally  if  no  trustee  is  named,  the  estate 
descends  to  the  heirs  of  the  testator  subject  to  the 
trust.  Bartlett  v.  Nye,  4  Met.  378. 

If  the  trustees  have  a  discretion  as  to  the  charitable 
purposes  to  which  the  estate  is  to  be  applied,  it  is 
plain  that  they  may  die  before  the  testator,  or  may 
decline  to  act,  or  may  fail  to  make  application  of  the 
fund.  If  the  trust  is  not  a  personal  one,  but  is  given 
to  the  trustees  and  their  successors,  it  cannot  fail 
from  any  of  the  above-named  causes.  Loring  v. 
Marsh,  2  Clifford,  469,  493;  s.  c.  6  Wallace,  337. 
But  if  the  trust  is  a  personal  one  it  fails  and  the 
fund  goes  to  the  next  of  kin.  Fontain  v.  Ravenel, 
17  How.  369. 

In  some  States  trustees  for  charities  are  not 
required  to  give  bonds.  It  is  said  that  the  purposes 
which  the  testator  has  in  view  can  often  be  better 
carried  out  by  providing  for  a  perpetual  succession 
of  trustees  without  resorting  to  the  courts.  See 


PUBLIC   CHARITIES  455 

Lowell  et  al,  Apts.,  22  Pick.  215,  216,  217.  Courts  of 
equity  will  not  only  appoint  new  trustees  to  fill  va- 
cancies, but  they  will  sanction  a  scheme  for  the  ad- 
ministration of  the  charity,  which  provides  for  the 
appointment  and  succession  of  trustees  without  a 
continual  recourse  to  legal  proceedings.  Attorney- 
General  v.  Winchelsea,  3  Bro.  Ch.  373;  Attorney- 
General  v.  Shore,  1  M.  &  Cr.  394;  12  Sun.  426. 
See  p.  540.  On  the  other  hand,  it  is  maintained 
that,  as  a  charity  is  public,  new  trustees  should 
be  appointed  by  court  and  not  by  an  exclusive 
body.  See  p.  583. 

As  to  who  may  take  a  charity,  a  devise  or  bequest 
to  an  unincorporated  society  for  charitable  uses  is 
generally  valid.  So  a  city  or  town  may  hold  real 
and  personal  estate  in  trust  for  the  support  of 
schools,  and  for  the  promotion  of  education  within 
its  limits,  and  may  hold  donations  for  the  main- 
tenance of  libraries  and  reading-rooms.  So  also 
religious  societies,  both  incorporated  and  unincor- 
porated, have  the  most  liberal  powers  as  to  taking 
and  holding  gifts  and  donations  made  to  them. 
-  It  is  common  to  give  money  for  the  saying  of 
masses  for  the  dead,  and  the  gifts  have  been  both 
upheld  and  also  declared  to  be  invalid.  There 
seems  to  be  no  objection  to  giving  the  money  abso- 
lutely to  the  church  or  clergy,  with  a  written  request 
outside  the  will  that  the  money  be  used  for  the  pur- 
pose just  stated. 

It  is  not  the  purpose  to   enter  at  length  here 


456  TESTAMENTARY   FORMS 

on  provisions  for  the  creation  of  charities  which 
have  been  sustained,  as  the  local  law  must  in  each 
case  be  examined  and  followed  in  drawing  the  will; 
but  it  may  be  said  generally  that  valid  charities  are 
created  where  the  gifts  are  for  the  furtherance  and 
promotion  of  the  cause  of  piety  and  good  morals, 
or  in  aid  of  objects  and  purposes  of  benevolence  or 
charity,  public  or  private,  or  temperance,  or  for  edu- 
cation, for  relief  of  the  poor  and  sick,  for  the  pro- 
motion of  agricultural  or  horticultural  improvements, 
for  public  parks,  for  the  benefit  of  disabled  soldiers 
and  seamen,  for  the  missionary  cause  of  a  church, 
for  the  public  good  by  encouraging  learning,  science, 
and  the  useful  arts,  for  poor  meritorious  widows 
living  within  certain  limits,  for  the  cause  of  Christ, 
for  the  support  of  a  city  missionary  of  a  certain 
church,  for  public  libraries,  etc. 

It  may  be  said  generally  that  invalid  charities 
are  created  where  the  gifts  are  for  public  worship, 
which  is  public  only  in  the  sense  that  it  is  open  to 
the  public  by  courtesy,  to  executors  to  be  distrib- 
uted to  such  persons,  societies,  or  institutions  as 
they  may  consider  most  deserving  (the  word  "chari- 
table" being  omitted),  for  the  permanent  care  of  a 
private  tomb  or  burial-place,  to  a  school,  which  is 
a  private  pecuniary  enterprise,  etc. 

One  of  the  best  ways  to  aid  education,  charity,  or 
religion  is  to  give  money  to  maintain  or  endow  insti- 
tutions already  existing.  The  gift  may  be  an  abso- 
lute one. 


PUBLIC   CHARITIES  457 

The  following  are  examples: 

Charitable  Gifts  to  Established  Institutions. 

I  give  Ten  Thousand  Dollars  to  the  People's  Uni- 
versity of  etc.,  to  be  used  by  it  for  any  object  or 
objects  germane  to  its  corporate  purposes.  It  is 
my  wish,  however,  that  the  income  thereof  may  be 
used  for  free  scholarships,  the  candidates  to  be 
selected  on  the  basis  of  character  and  merit. 

All  the  rest,  residue  and  remainder  of  my  property, 
both  real  and  personal,  of  which  I  shall  die  seized 
and  possessed  and  to  which  I  may  be  entitled  at  the 
time  of  my  decease,  I  give,  devise  and  bequeath  to 
the  Tenth  Ward  Free  Hospital  of  etc.,  a  corporation 
duly  formed  and  established  under  the  laws  of  the 
State  of,  etc.,  to  be  held,  enjoyed,  applied  and  ex- 
pended for  the  purposes  permitted  and  authorized 
by  its  certificate  of  incorporation,  dated,  etc.,  or 
by  any  amendment  hereafter  made  to  said  certificate 
under  general  laws  or  by  legislative  act. 

I  am  at  present  engaged  hi  the  erection  of  a  build- 
ing located  at  the  corner  of  A.  B.  and  C.  D.  Streets 
in  the  city  of,  etc.,  which  building  upon  completion 
is  to  be  used  for  charitable  and  religious  purposes 
conformably  to  the  deed  of  conveyance  to,  etc., 
dated,  etc.,  and  recorded,  etc.  If  at  the  tune  of  my 
decease  said  building  is  uncompleted,  I  authorize, 
direct  and  empower  my  executors  to  complete  and 
finish  the  same  with  the  funds  of  my  estate  agree- 


458  TESTAMENTARY   FORMS 

ably  to  the  plans  and  specifications  now  existing 
with  such  modifications  and  changes  as  they  may 
deem  desirable. 

I  give  the  organization  known  as  the  Society  for 
the  Education  and  Training  of  Homeless  Children, 
which  is  duly  incorporated  by  law,  and  is  located  at 
No.  714  Blank  Street  in  the  city  of  New  York,  the 
sum  of  One  Hundred  Thousand  Dollars.  While  I 
commend  all  the  activities  of  that  organization,  I 
particularly  favor  its  work  in  placing  poor  children 
in  homes  in  the  country  districts  and  in  small  towns 
and  providing  for  their  education  and  training  on 
practical  lines.  While  I  hope  that  the  managers 
of  the  Society  will  expend  the  income  of  my  be- 
quest for  the  promotion  of  the  object  just  referred 
to,  I  impose  no  restraint  and  leave  them  free  to 
expend  the  same  for  any  purposes  germane  to  their 
corporate  requirements. 

I  give  to  the  People's  University  of,  etc.,  the  sum 
of  Fifty  Thousand  Dollars  to  be  added  to  the  Free 
Lecture  Fund,  the  income  to  be  expended  as  the 
trustees  of  the  University  may  decide  for  lectures 
to  the  students  on  literary  and  scientific  topics  or 
any  other  subjects  of  an  educational  nature. 

I  give  to  said  University  the  sum  of  One  Hundred 
Thousand  Dollars,  the  income  to  be  used  as  the  trus- 
tees of  the  University  may  decide  in  payment  of  the 
tuition  and  board  of  worthy  students  of  limited 
means. 


PUBLIC   CHARITIES  459 

I  give  the  said  University  the  sum  of  Two  Hundred 
Thousand  Dollars,  the  entire  amount  to  be  used  as 
the  trustees  of  the  University  may  deem  best  in  the 
repair  of  and  in  making  additions  to  any  building 
or  buildings  of  the  said  University  or  in  the  erection 
of  a  dormitory. 

I  give  the  said  University  the  sum  of  Twenty 
Thousand  Dollars,  the  entire  amount  to  be  expended 
in  purchasing  such  books  as  the  trustees  of  the 
University  may  select  for  the  University  library. 

All  the  rest,  residue  and  remainder  of  my  property, 
both  real  and  personal,  of  which  I  shall  die  seized 
and  possessed  and  to  which  I  may  be  entitled  at  the 
tune  of  my  decease,  I  give,  devise  and  bequeath  to 
the  People's  University  of,  etc.,  founded  and  en- 
dowed by,  etc.,  and  duly  incorporated  according  to 
law,  to  have  and  to  hold  to  said  University  and 
its  successors,  the  personalty  absolutely,  and  the 
realty  hi  fee  simple.  The  said  University  through 
its  trustees  or  other  governors  may  use  said  rest, 
residue  and  remainder  for  any  purpose  germane  to 
the  provisions  of  its  charter  or  act  of  incorporation. 

I  give  and  bequeath  to  the  corporation  styled 
"The  Trustees  of  the  Winthrop  Library,"  located 
in  the  city  of  Chicago,  the  following  described  bonds 
[description].  I  desire  that  the  net  income  or  annual 
proceeds  of  said  bonds  or  of  any  securities  or  prop- 
erty into  which  they  may  be  converted  shall  be 
applied  to  and  expended  in  the  payment  of  salaries 


460  TESTAMENTARY   FORMS 

of  librarians  and  other  employees,  of  charges  for 
heat  and  lighting,  of  other  current  expenses,  and  in 
the  purchase  of  furniture  and  materials  or  apparatus 
suitable  and  peculiar  to  the  needs  and  uses  of  a 
library.  If  there  is  any  surplus  income,  I  desire  that 
it  may  be  expended  in  the  purchase  of  new  books 
and  the  rebinding  and  recovering  of  old  ones.  But 
the  desires  and  wishes  first  expressed  are  not  to 
be  construed  as  creating  a  trust,  and  the  above- 
mentioned  trustees  and  their  successors  are  au- 
thorized to  expend  the  said  net  income  or  annual 
proceeds  for  any  purposes  provided  for  and  defined 
in  vthe  act  incorporating  "The  Trustees  of  the 
Winthrop  Library." 

I  give  and  bequeath  the  sum  of  Two  Hundred 
Thousand  Dollars  to  the  "Bridgton  Free  School  for 
Manual  Training"  located  in  the  city  of  Cleveland 
and  duly  incorporated  under  the  laws  of  the  State 
of  Ohio,  the  net  income  thereof  to  be  expended  for 
the  maintenance  and  support  of  such  school  in  such 
way  agreeably  to  law  as  the  trustees  may  direct. 

An  excellent  method  of  giving  money  for  chari- 
table and  religious  work,  etc.,  is  to  give  it  to  those, 
in  whom  the  testator  has  confidence,  to  expend  con- 
formably to  wishes  expressed  or  to  a  request  in  writ- 
ing which  is  not  made  a  part  of  the  will. 


PUBLIC   CHARITIES  461 

Charitable  Bequests  to  be  Expended  According  to  Wishes  of 
Testator. 

During  two  years  after  the  proving  of  this  will  I 
authorize  and  empower  my  executors  to  donate  to 
charitable,  benevolent,  religious  and  educational  in- 
stitutions such  sums  of  money  as  I  have  been  in 
the  custom  of  donating  to  such  institutions  during 
similar  periods.  My  executors  are  acquainted  with 
my  purposes  and  desires;  they  are  not  to  be  called 
to  account  for  any  donations  for  the  above  purposes 
and  the  same  are  to  be  credited  in  their  accounts 
as  executors  as  proper  and  legal  expenditures. 

In  addition  to  the  property  given  to  my  trustees 
in  trust  as  hereinbefore  provided,  I  give  and  be- 
queath to  them  not  as  trustees  but  personally  as 
joint  tenants  the  sum  of  Thirty  Thousand  Dollars 
to  be  theirs  absolutely.  It  is  my  wish  that  they 
expend  the  same  in  accordance  with  wishes  expressed 
in  a  memorandum  which  will  be  found  among  my 
papers,  but  they  are  not  required  so  to  do. 

For  several  years  I  have  devoted  a  certain  amount 
of  money  to  the  promotion  of  religious  and  charitable 
work  in  the  city  of  New  York,  and  I  desire  the  con- 
tinuance of  the  expenditure  for  those  purposes  for 
some  time  after  my  decease,  without  establishing  in 
this  will  a  charitable  trust.  As  my  son  A.  B.  is 
acquainted  with  my  views  and  wishes,  I  give  and 
bequeath  unto  him  the  sum  of  Twenty  Thousand 
Dollars,  feeling  confident  that  he  will  expend  the 


462  TESTAMENTARY   FORMS 

same  in  the  manner  and  for  the  purposes  I  have 
already  in  private  declared  to  him.  No  restraint  or 
trust,  however,  is  imposed  upon  him  and  he  is  to 
expend  the  money  without  being  called  to  account 
by  any  individual  or  tribunal. 

I  give  and  bequeath  to  my  friend  A.  B.  the  sum  of 
Ten  Thousand  Dollars,  which  I  trust  he  will  divide 
among  such  charitable  institutions  as  he  deems 
most  deserving  and  in  such  proportions  as  he  thinks 
best.  I  impose  no  restraint  and  create  no  trust,  but 
leave  the  said  A.  B.  entirely  free  as  to  the  best  method 
in  his  judgment  of  disposing  of  the  above  legacy, 
without  being  answerable  to  any  person  or  court 
whatsoever. 

As  charitable  trusts  are  sometimes  incapable  of 
fulfilment  of  testator's  wishes  on  account  of  the 
happening  of  unforeseen  events  and  change  of 
circumstances  generally  resulting  in  costly  litigation, 
I  do  not  propose  to  establish  any  such  trusts  in  this 
will,  but  I  earnestly  enjoin  my  wife  and  children 
from  the  abundant  resources  I  leave  them  to  give 
freely  from  time  to  time  to  deserving  charities, 
especially  to  hospitals  and  orphan  asylums. 

I  give  my  wife  A.  B.  the  sum  of  Fifty  Thousand 
Dollars,  and  I  desire  her  to  expend  the  same  for  chari- 
table purposes  conformably  to  wishes  I  have  already 
expressed  to  her.  I  give  the  said  legacy  to  my  wife 
to  be  hers  absolutely,  and  her  use  and  expenditure 


PUBLIC    CHARITIES  463 

of  the  same  are  not  to  be  interfered  with  or  ques- 
tioned by  any  one. 

I  have  learned  from  experience  and  observation 
that  perpetual  trusts  for  religious  and  charitable 
objects  are  not  always  satisfactory,  as  the  happening 
of  unforeseen  events  and  changes  of  circumstances 
often  make  the  carrying  out  of  the  testator's  inten- 
tion either  difficult  or  impossible.  In  most  cases  I 
believe  it  better  to  give  outright  to  benevolent  and 
religious  objects,  leaving  the  institutions  or  societies 
unrestricted  in  the  use  and  expenditure  of  the  funds. 
It  has  been  my  practice  for  many  years  to  give  out- 
right to  deserving  objects;  and  I  now  urge  my  wife 
and  children  to  continue  the  benefactions  in  the  same 
manner  from  the  property  herein  bequeathed  to  them. 

A  wealthy  man  while  living  frequently  establishes 
a  charitable,  educational,  or  religious  institution  and 
then  makes  provision  in  his  will  for  its  maintenance 
and  support.  If  such  an  institution  is  incorporated 
it  may  receive  the  testator's  donations  given  by  his 
will,  and  his  estate  will  be  relieved  from  further 
responsibility. 

More  frequently  the  wealthy  testator  provides  for 
the  foundation  after  his  death.  The  provision  in 
such  case  should  be  carefully  worded.  The  best 
method  is  to  bequeath  and  devise  the  property  to 
executors  or  trustees  with  a  limitation  over  to  a 
corporation  to  be  organized.  The  following  brief 
form  may  be  of  service: 


464  TESTAMENTARY   FORMS 

Gift  to  Executors  with  Limitation  over  to  Corporation  when 
Organized. 

I  give  the  sum  of  One  Million  Dollars  to  establish 
in  the  city  of  New  York  a  foundling  hospital  and  to 
erect  or  purchase  a  suitable  building,  to  endow  the 
institution  and  to  provide  for  its  maintenance  and 
support.  I  direct  my  executors  as  soon  as  may  be 
after  my  decease  to  obtain  from  the  legislature  a 
charter,  or  cause  a  corporation  to  be  formed  under 
the  laws  of  the  State,  for  the  purpose  of  receiving 
the  bequest  and  accomplishing  the  object  suggested 
of  a  free  foundling  hospital  open  to  infants  irrespec- 
tive of  considerations  of  nationality,  religion  and 
color.  I  direct  my  said  executors  to  see  that  in  the 
charter  or  certificate  of  incorporation  all  the  details 
of  organization  and  management  are  fully  set  forth 
and  that  the  same  be  supplemented  by  appropriate 
by-laws.  Upon  the  due  establishment  of  the  cor- 
poration I  direct  my  said  executors  to  pay  over  and 
transfer  to  the  proper  officers  thereof  the  above  be- 
quest of  a  million  dollars  and  accumulations,  if  any; 
and  thereupon  my  said  executors  shall  be  released 
from  all  responsibility  relative  thereto.  It  is  my 
wish  that  my  friends  A.  B.,  C.  D.,  E.  F.,  G.  H.,  and 
I.  J.  may  be  on  the  first  board  of  directors. 

In  establishing  libraries,  hospitals,  etc.,  testators, 
after  providing  for  the  regular  purposes  of  the 
foundation,  often  forget  to  provide  for  janitor's 
compensation,  heating,  lighting,  and  other  expenses 
incident  to  the  care  of  buildings.  See  form  on  p.  581. 


PUBLIC    CHARITIES  465 

Various  forms  used  in  creating  public  charities 
may  be  found  in  Burrill  v.  Boardman,  43  N.  Y.  254; 
Tilden  v.  Green,  130  N.  Y.  29;  Allen  v.  Stevens, 
161  N.  Y.  122;  Inglis  v.  Trustees  of  Sailor's  Snug 
Harbor,  3  Pet.  (U.  S.)  99;  Blatchford  v.  Newberry, 
99  111.  11;  Attorney  General  v.  Newberry  Library, 
150111.229;  Crerar  v.  Williams,  145  111.  625.  Many 
forms  may  also  be  found  in  Remsen  on  Wills.  See 
also  pp.  539,  579. 

It  is  not  uncommon  for  trustees  under  wills  for 
educational  and  charitable  purposes,  etc.,  to  obtain 
a  special  act  of  incorporation.  In  Appendix  II  may 
be  found  copies  of  such  acts,  and  also  of  acts  provid- 
ing that  the  trustees  shall  convey  the  property  to 
the  corporation  and  obtain  their  discharge  by  the 
Probate  Court. 


CHAPTER  XVIII 

EXECUTION  AND  ATTESTATION 

IT  is  a  general  rule  that  a  will  which  bequeaths 
personal  property  must  be  executed  conformably 
to  the  law  of  the  testator's  domicile,  and  one  which 
devises  real  property,  conformably  to  the  law  of 
the  country  in  which  the  real  property  is  situated. 
It  is  common  for  attorneys  to  overlook  this  law  as 
to  realty,  and  the  statutes  in  so  many  jurisdictions 
are  so  favorable  to  the  proof  of  foreign  wills,  that 
little  trouble  is  likely  to  arise;  but  for  safety  the 
attorney  should  ascertain  the  law  of  the  foreign 
jurisdiction,  and  see  that  the  will  is  executed  accord- 
ing to  that  law  as  well  as  according  to  the  law  of  the 
testator's  domicile.  See  p.  17. 

Although  a  seal  is  not  necessary  to  the  validity  of 
a  will,  as  there  is  no  need  of  raising  a  presumption 
of  a  consideration,  yet  it  is  always  safe  to  affix  one; 
especially  if  a  power  of  appointment  is  to  be  executed 
by  a  writing  under  the  hand  and  seal  of  the  testator. 
In  such  case  it  has  been  held  that  a  will  signed  but 
not  sealed  is  not  a  due  execution  of  the  power.  See 
West  v.  Ray,  Kay,  Ch.  385;  Taylor  v.  Means,  4 
De  G.,  J.  &  S.  597. 

A  testator  should  exercise  great  care  in  making 

466 


EXECUTION   AND   ATTESTATION  467 

any  obliterations  or  interlineations  in  the  will.  It  is 
better  in  most  cases  to  rewrite  the  entire  instrument; 
and  it  is  apparent,  where  erasures  and  interlineations 
are  made  either  in  a  will  or  codicil,  or  both,  that 
additional  pains  must  be  exercised  to  avoid  conflict 
or  confusion. 

Obliterations  and  interlineations  are  of  two  kinds: 

1.  Those  made  before  the  execution  of  the  will. 

If  there  is  no  evidence  to  show  when  they  were 
made,  the  presumption  is  that  they  were  made  after 
the  execution  of  the  will.  Cooper  v.  Bocket,  4  Moo. 
P.  C.  C.  419.  "The  burden  of  proof  is  on  a  party 
presenting  a  will  to  show  that  alterations  or  inter- 
lineations in  it  were  made  before  its  execution,  and 
unless  there  is  something  in  the  nature  of  them,  as 
applied  to  other  parts  of  the  writing,  or  unless  there 
is  other  evidence  to  show  that  they  were  a  part  of 
the  will  when  it  was  executed,  they  will  be  rejected 
for  want  of  proof.  The  opportunities  for  making 
alterations  in  a  will  are  often  so  great,  and  the  re- 
quirement of  the  statute  that  a  will  shall  not  take 
effect  unless  it  is  executed  with  due  formality  is  so 
strict,  that  apparent  alterations  in  a  will  are  looked 
upon  with  some  suspicion.  The  validity  of  changed 
portions  is  not  assumed,  but  there  may  be  evidence 
to  establish  it;  and  this  evidence  may  be  found  in 
the  instrument  itself,  or  may  come  from  outside 
of  it."  Wilton  v.  Humphreys,  176  Mass.  253,  257. 

The  only  safe  way  after  the  erasures  and  interlin- 
eations have  been  made  is  to  carefully  refer  to  them 
between  the  attestation  clause  and  the  signatures  of 


468  TESTAMENTARY   FORMS 

the  witnesses.  See  p.  508.  Each  witness  should,  of 
course,  verify  the  changes  by  actual  observation. 

2.  Those  made  after  the  execution  of  the  will. 

This  subject  has  been  already  considered  under 
"Revocation."  See  p.  303. 

In  most  States  wills  executed  on  the  Lord's  day 
are  valid.  It  is  better,  however,  to  have  the  will 
executed  on  a  week-day,  unless  illness  or  some  other 
circumstance  makes  the  execution  on  a  Sunday 
urgent. 

The  wording  of  the  in  testimonium  clause  is  not 
important.  Forms  like  the  following  may  be  used, 
most  of  which  are  taken  from  actual  wills: 

In  testimony  whereof  I  have  hereunto  set  my 
hand  and  seal  this  tenth  day  of  August,  1911. 

In  witness  whereof  I  have  signed  and  sealed  these 
presents  and  do  publish  and  declare  the  same  as 
and  for  my  last  will  and  testament  this  twenty- 
second  day  of  November  hi  the  year  of  our  Lord 
one  thousand  nine  hundred  and  eleven. 

In  testimony  whereof  I  have  hereunto  set  my 
hand  and  seal  this  ninth  day  of  October,  in  the  year 
of  our  Lord  nineteen  hundred  and  eleven,  and  have 
written  my  name  on  the  margin  of  each  preceding 
page. 

In  witness  whereof  I,  the  said  A.  B.,  have  here- 
unto set  my  hand  and  seal  at  the  city  of  Chicago, 


EXECUTION   AND   ATTESTATION  469 

this  second  day  of  June,  1911,  and  have  put  my 
initials  to  each  preceding  page. 

In  witness  whereof  I  have  hereunto  subscribed 
my  name  and  affixed  my  seal  at  No.  2  Jackson 
Street,  in  the  city  of  Boston,  this  sixteenth  day  of 
July  in  the  year  of  our  Lord  one  thousand  nine 
hundred  and  eleven,  in  the  presence  of  C.  D.,  E.  F., 
and  G.  H.,  whom  I  have  requested  to  become  at- 
testing witnesses  hereto. 

In  testimony  whereof  I,  the  said  A.  B.,  have  to 
this  my  last  will  and  testament  contained  in  ten 
sheets  of  paper  and  to  every  sheet  thereof  sub- 
scribed my  name  this  second  day  of  April  in  the 
year  of  our  Lord  one  thousand  nine  hundred  and 
eleven. 

In  testimony  whereof  I  have  with  full  knowledge 
of  all  the  contents  of  the  foregoing  instrument  here- 
unto set  my  hand  and  seal  and  have  signed,  sealed, 
acknowledged,  published  and  declared  the  same  to 
be  my  last  will  and  testament  and  acknowledged 
the  signature  hereto  to  be  my  genuine  signature 
written  by  myself,  in  the  presence  of  the  persons 
subscribing  hereto  as  witnesses,  and  have  requested 
them  to  attest  the  same  as  my  last  will  and  testa- 
ment and  to  attest  my  signature  hereto  at,  etc.,  this 
fifth  day  of  May  A.  D.  1911. 

In  nearly  all  jurisdictions  there  is  an  inflexible 
rule  that  the  will  must  be  signed  by  the  testator  or 


470  TESTAMENTARY   FORMS 

by  a  person  in  his  presence  and  by  his  express  direc- 
tion. If  the  testator  directs  some  one  to  sign  his 
name  for  him,  the  attestation  clause  should  be 
slightly  varied  to  meet  the  circumstances  of  the 
case.  See  p.  508.  When  the  testator  signs  himself, 
the  signature  must  be  in  his  own  handwriting,  or, 
in  case  he  is  unable  to  write,  his  mark.  The  signa- 
ture should  be  at  the  end  of  the  will,  and  this  is 
obligatory  in  some  jurisdictions. 

Where  the  signature  of  the  testator  was  by  mak- 
ing a  +,  and  his  name  was  appended  to  the  cross 
by  one  of  the  attesting  witnesses,  it  was  held  to  be 
a  sufficient  signing  by  the  testator.  Nickerson  v. 
Buck,  12  Gush.  332.  In  Matter  of  Phelps,  22  St. 
Rep.  (N.  Y.)  896,  the  will  was  subscribed  by  the 
testator's  mark  with  two  witnesses.  One  witness 
died  after  the  execution  and  the  testimony  of  the 
other  was  taken  by  commission.  The  court  would 
not  admit  the  will  to  probate  "  unless  testimony  of 
other  persons  who  were  present  at  the  time  of  the 
execution  of  the  paper  is  given."  Remsen,  p.  353, 
says,  "This  suggests,  in  such  cases,  the  importance 
of  more  than  the  statutory  number  of  witnesses." 

When  the  will  is  written  on  several  sheets  of 
paper,  and  especially  when  the  will  is  an  important 
one,  the  testator  should  sign  or  write  his  initials  on 
every  sheet  in  addition  to  his  signature  at  the  end. 
This  is,  of  course,  unnecessary,  so  far  as  the  validity 
of  the  will  is  concerned;  but  it  is  a  safe  course  to 
pursue,  as  every  sheet  of  the  will  is  thus  identified. 
See  in  testimonium  clauses  just  above,  also  p.  504. 


EXECUTION   AND   ATTESTATION  471 

But  all  the  separate  sheets  of  paper  must  be  in  the 
room  and  in  the  presence  of  the  attesting  witnesses. 

But  a  signature  to  each  page  of  the  will,  when  the 
last  page  is  left  unsigned,  is  not  prima  fade  a  suffi- 
cient execution.  Sweetland  v.  Sweetland,  4  Sw.  & 
T.  6. 

As  in  the  case  of  typewritten  wills  deception  may 
be  easily  practised  by  removing  one  or  more  sheets 
and  substituting  others,  the  testator  should  sign 
every  sheet  of  the  will. 

Even  though  the  statutory  requirement  is  two 
witnesses,  it  is  better  to  have  three;  and,  if  the 
statute  calls  for  three,  four  can  do  no  harm.  Gener- 
ally an  attesting  witness  must  be  one  who  at  the 
time  of  the  attestation  would  be  competent  to 
testify  in  court  to  the  matter  which  he  attested. 

It  is  evident  that  the  witnesses  should  be  per- 
sons of  respectability,  character,  and  good  standing. 
Business  men,  physicians,  and  friends  and  acquaint- 
ances of  the  testator  make  the  best  witnesses. 

The  witnesses  should  be  younger  than  the  testator, 
so  that  they  will  probably  survive  him;  for  if  they 
are  all  dead  at  the  time  of  the  testator's  decease,  it 
will  be  necessary  to  prove  their  signatures  in  order 
to  establish  the  will. 

For  safety  the  following  should  not  be  witnesses,  — 
infants,  incompetent  persons,  those  convicted  of  a 
crime,  an  heir-at-law  of  the  testator,  an  executor 
named  in  the  will,  a  legatee  or  devisee  under  the 
will,  the  husband  or  wife  of  a  legatee  or  devisee,  a 
creditor  of  the  testator,  a  member  or  stockholder  of 


472  TESTAMENTARY   FORMS 

a  corporation  to  which  property  is  bequeathed  in 
the  will,  the  attorney  who  draws  the  will,  for  by 
becoming  a  witness  his  privilege  from  giving  testi- 
mony is  in  many  States  waived. 

In  some  States  besides  the  family  physician  who 
has  been  the  medical  adviser  of  the  deceased,  and 
witnesses  who  by  special  skill  and  experience  are 
qualified  as  experts  in  the  knowledge  and  treatment 
of  mental  diseases,  the  witnesses  to  the  will  are 
alone  competent  to  give  their  opinions  in  evidence. 
In  most  jurisdictions,  however,  it  is  probable  that 
nearly  any  one  acquainte4  with  the  testator  may 
give  his  opinion  as  to  the  testator's  mental  con- 
dition. It  is  safer  not  to  have  as  witness  to  a  codicil 
a  legatee  in  the  will.  See  Denne  v.  Wood,  4  L.  J. 
(0.  S.)  57. 

"When  one  consents  to  become  a  witness  to  the 
execution  of  a  will,  and  goes  into  court  and  testi- 
fies that  he  did  not  regard  the  testator,  at  the  time 
of  his  attestation  of  the  execution,  as  being  in  a 
state  of  mind  suitable  to  the  full  comprehension  and 
understanding  of  his  act,  he  virtually  declares  his 
own  infamy."  1  Redfield  on  Wills  (3d  ed.),  666,  n. 

An  inhabitant  of  and  a  taxpayer  in  a  town  is  a 
competent  witness  to  a  will  which  gives  the  town 
the  interest  of  a  fund  for  the  purchase  of  books  for 
the  town  library;  and  the  fact  that  he  may  have,  as 
an  inhabitant,  the  use  of  the  books  so  purchased 
does  not  render  him  incompetent.  Hitchcock  v. 
Shaw,  160  Mass.  140. 

Any  document  or  paper  cannot  be  incorporated 


EXECUTION   AND   ATTESTATION  473 

in  the  will  by  reference,  unless  the  provisions  set 
forth  on  p.  129  are  complied  with.  Otherwise  it 
must  be  properly  executed  and  witnessed  in  ac- 
cordance with  the  statute. 

The  following  are  the  safest  rules  to  follow  in  the 
actual  execution  and  attestation  of  the  will: 

1.  Publication. 

For  safety,  as  a  part  of  the  act  of  executing  the 
will  the  testator  should  declare  to  all  the  witnesses, 
"This  is  my  last  will  and  testament,  and  I  desire 
and  request  you  to  act  as  witnesses  to  my  signature 
to  it."  In  most  cases  there  would  probably  be  no 
objection  if  the  declaration  be  made  by  another 
than  the  testator,  but  in  his  presence  and  by  his 
direction  and  with  his  assent.  The  fact  of  publica- 
tion should  appear  in  the  attestation  clause. 

As  a  general  rule  it  is  not  necessary  to  the  validity 
of  a  will  that  it  be  read  by  or  to  the  person  executing 
it:  it  is  sufficient  if  the  court  is  satisfied,  by  compe- 
tent evidence,  that  the  contents  of  the  will  were 
known  to  and  approved  by  the  person  executing  it, 
at  the  time  it  was  executed  as  a  will. 

2.  The  witnesses  should  see  the  testator  sign  the 
will. 

The  witnesses  should  not  only  be  in  the  same 
room  with  the  testator  but  they  should  actually 
witness  the  writing  of  his  name  —  then  no  question 
may  be  raised. 

3.  The  witnesses  should  sign  in  the  presence  of  the 
testator,  and  after  he  has  himself  signed  the  will. 


474  TESTAMENTARY   FORMS 

The  witnesses  should  sign  directly  after  the  attes- 
tation clause  in  the  presence  of  the  testator,  at  his 
request,  and  in  the  presence  of  one  another.  The 
testator  and  all  the  witnesses  should  remain  in  the 
room  until  they  have  all  signed. 

4.  The  witnesses  should  sign  in  the  presence  of  each 
other. 

This  may  not  be  necessary  in  all  jurisdictions, 
but  it  is  advisable;  otherwise,  where  large  interests 
are  at  stake,  a  door  might  be  opened  to  perjury  and 
fraud.  In  some  States  it  is  provided  by  statute 
that  if  it  appears  to  the  court  by  the  consent  in 
writing  of  the  heirs,  or  by  other  satisfactory  evi- 
dence, that  no  person  interested  hi  the  estate  of  a 
person  deceased  intends  to  object  to  the  probate  of 
an  instrument  purporting  to  be  the  will  of  such  de- 
ceased person,  the  court  may  grant  probate  thereof 
upon  the  testimony  of  one  only  of  the  subscribing 
witnesses;  and  the  affidavit  of  such  witness,  taken 
before  the  register  of  probate,  may  be  received  as 
evidence.  It  is  plain  that  the  court  cannot  know 
that  the  other  two  names  are  those  of  actual  wit- 
nesses, unless  the  witness  present  can  testify  that  he 
saw  them  sign.  Better  have  all  subscribing  wit- 
nesses testify,  if  the  testator  leaves  property  in  an- 
other jurisdiction,  the  laws  of  which  require  that  all 
subscribing  witnesses  must  testify. 

The  statutes  of  several  States  provide  that  the 
witnesses  to  a  will  shall  write  opposite  to  or  under 
their  names  their  respective  places  of  residence. 
The  precaution  is  a  wise  one  to  take,  especially  in 


EXECUTION   AND   ATTESTATION  475 

a  large  city,  where,  otherwise,  a  witness  might  not 
easily  be  found  when  needed.     See  p.  504. 

In  the  case  of  a  blind  and  illiterate  testator  it  is 
essential  that  he  should  fully  understand  the  entire 
provisions  of  the  will  and  that  the  witnesses  should 
know  that  he  understands  them.  If  the  will  is 
read  to  the  testator  by  a  disinterested  person  in  the 
presence  of  the  witnesses,  every  requirement  will 
be  met.  If  the  will  is  read  to  the  testator  privately, 
he  should  state  to  the  witnesses  that  he  has  full 
knowledge  of  its  contents,  and  this  fact  should  ap- 
pear at  the  end  of  the  attestation  clause  hi  language 
like  the  following: 

And  we  state  and  affirm  that  the  testator  being 
blind  [illiterate]  declared  hi  the  presence  of  all  of  us 
that  the  will  having  been  just  read  to  him  he  had 
full  knowledge  of  all  its  contents  and  provisions 
and  was  fully  satisfied  therewith. 

In  the  case  of  testators  of  advanced  years  and 
feeble  intellects  great  precaution  is  necessary,  both 
in  the  interests  of  testators  and  for  the  profes- 
sional standing  and  reputation  of  counsel.  Affirma- 
tive proof  may  be  required  that  the  testator  had 
full  knowledge  of  the  contents  of  the  will.  1  Jarman 
on  Wills,  36. 

In  the  case  of  deaf  and  dumb  testators  who  can- 
not read  or  write,  care  should  be  taken  that  the 
methods  employed  by  the  testators  to  communi- 
cate their  purposes  and  desires,  whether  by  signs 


476  TESTAMENTARY   FORMS 

or  otherwise,  are  sufficient  to  justify  the  court  in  ad- 
mitting their  wills  to  probate.  See  In  the  Goods  of 
Francis  Owston,  2  Sw.  &  Tr.  461;  Rollwagen  v. 
Rollwagen,  63  N.  Y.  504. 

Testators  frequently  execute  their  wills  in  dupli- 
cate. "The  custom  of  executing  wills  in  duplicate  is 
much  more  common  in  England  than  in  this  coun- 
try. Its  desirability,  however,  is  obvious,  as  it 
lessens  greatly  the  risk  of  loss.  As  there  is  but  one 
will,  one  copy  only  is  probated."  Gardner  on  Wills, 
43.  It  may  be  well  to  write  the  in  testimonium 
clause  as  follows: 

In  testimony  whereof  I  have  hereunto  and  to  an- 
other will  of  identical  contents  and  provisions  set  my 
hand,  etc. 

If  after  a  will  is  executed  the  law  as  to  the  for- 
malities of  execution  is  changed,  the  will  should  be 
re-executed,  unless  there  is  a  statute  providing  that 
a  will  which  is  made  and  executed  in  conformity 
with  the  law  existing  at  the  tune  of  its  execution 
shall  have  the  same  effect  as  if  it  were  made  and 
executed  pursuant  to  any  later  laws.  "Republica- 
tion  and  re-execution  may  be  accomplished  directly 
or  indirectly,  directly  by  signing  and  witnessing  the 
same  paper  again,  indirectly  by  sufficient  reference 
to  it  in  a  duly  executed  codicil."  Rood  on  Wills, 
§  392  et  seq. 

Although  an  attestation  clause  is  not  necessary, 
yet  it  is  advisable  not  to  omit  it. 


EXECUTION   AND   ATTESTATION  477 

The  following  is  the  attestation  clause  commonly 
used: 

Signed,  sealed,  published  and  declared  by  the 
testator  as  and  for  his  last  will  and  testament,  in 
the  presence  of  us,  who,  at  his  request,  in  his  pres- 
ence and  in  the  presence  of  one  another,  have  here- 
unto subscribed  our  names  as  witnesses. 

The  following  forms  are  taken  from  actual  wills: 

We,  the  undersigned,  certify  that  on  this  tenth 
day  of  April  in  the  year  of  our  Lord  nineteen  hun- 
dred, A.  B.  exhibited  to  us  the  foregoing  instrument 
in  typewriting  on  three  pages,  inclusive  of  this,  and 
declared  the  same  to  be  his  last  will  and  testament, 
and  requested  us  to  witness  his  execution  of  it. 
Whereupon  he  did,  hi  our  presence,  subscribe  his 
name  at  the  end  thereof,  and  the  signature  A.  B. 
at  the  end  thereof  is  the  genuine  signature  of  said 
testator.  He  did  also  in  our  presence  write  the 
initials  A.  B.  in  the  margin  of  the  first  and  second 
pages  of  said  instrument.  We  do,  therefore,  in  the 
presence  of  said  testator  and  of  each  other,  sub- 
scribe our  names  as  witnesses. 

The  above  written  instrument  consisting  of  five 
sheets  was  subscribed  and  sealed  by  the  testator, 
A.  B.,  on  the  day  it  bears  date,  at  the  city  of  etc., 
hi  our  presence,  and  he  then  and  there,  to  each  of 
us,  acknowledged,  published  and  declared  the  same 
to  be  his  last  will  and  testament;  and  thereupon, 


478  TESTAMENTARY   FORMS 

at  his  request,  and  in  his  presence,  and  hi  the  pres- 
ence of  each  other  we  signed  our  names  thereto  as 
attesting  witnesses. 

On  this  second  day  of  June  eighteen  hundred  and 
ninety-two  the  above  named  testator,  A.  B.,  in  our 
presence  subscribed  and  sealed  the  foregoing  in- 
strument and  declared  the  same  to  be  his  last  will 
and  testament  and  we  thereupon,  at  his  request, 
in  his  presence  and  in  the  presence  of  each  other, 
have  hereunto  subscribed  our  names  as  attesting 
witnesses. 

The  foregoing  instrument  contained  on  this  and 
the  fifty-one  preceding  pages,  was  on  this  twenty- 
fifth  day  of  February,  in  the  year  of  our  Lord  nine- 
teen hundred  and  four,  signed,  sealed,  published  and 
declared  by  the  said  A.  B.,  the  testator  therein 
named,  as  and  for  his  last  will  and  testament,  in  the 
presence  of  us,  who  at  his  request  and  in  his  presence, 
and  hi  the  presence  of  each  other,  have  hereunto  sub- 
scribed our  names  as  witnesses,  having  also  seen  the 
said  testator's  name  written  by  him  in  full  on  the 
margin  of  each  page  except  the  last  one. 

On  this  14th  day  of  July  A.  D.  1898,  the  under- 
signed being  present  and  believing  the  testator  to  be 
of  sound  mind  and  memory,  saw  the  testator  sub- 
scribe the  foregoing  will.  At  the  time  of  such  sub- 
scription the  testator  stated  to  all  the  undersigned 
that  the  paper  was  his  last  will  and  testament. 


EXECUTION   AND   ATTESTATION  479 

Thereupon  each  of  us,  in  the  presence  of  the  testator, 
and  at  his  request,  and  in  the  presence  of  each  other, 
hereby  attest  and  subscribe  said  will  as  witnesses, 
the  day  and  year  above  written. 

The  foregoing  instrument  was,  at  the  date  thereof, 
by  the  testator,  A.  B.,  signed,  sealed,  published  and 
declared  by  him  to  be  his  genuine  signature,  written 
by  himself,  in  our  presence  and  hearing,  and  we,  at 
his  request  and  in  his  presence  and  in  the  presence 
of  each  other  have  subscribed  our  names  hereto  as 
attesting  witnesses.  And  we  further  state  that  the 
testator  was  at  the  tune  of  the  making  and  signing 
of  said  instrument  of  sound  and  disposing  mind  and 
memory. 

Subscribed,  sealed,  published  and  declared  by  the 
said  testator  A.  B.  to  be  his  last  will  and  testament, 
in  the  presence  of  us  and  each  of  us,  who,  at  his  re- 
quest and  in  his  presence,  and  in  the  presence  of 
each  other,  have  hereunto  signed  our  names  as  wit- 
nesses, this  clause  having  been  first  read  to  us  and 
we  having  noted  and  hereby  certifying  that  the 
matters  herein  stated  took  place  in  fact  and  in  the 
order  herein  stated. 

A  matter  which  deserves  particular  attention  is 
the  custody  of  the  will.  The  document  should  be 
placed  where  no  opportunity  will  be  afforded  to 
purloin  or  tamper  with  it.  An  excellent  method  is 
to  place  it  in  the  custody  of  the  testator's  attorney 


480  TESTAMENTARY   FORMS 

or  of  the  executor  named  in  it.  If  the  testator  re- 
tains the  will  himself,  he  should  inform  the  executor 
of  the  place  where  it  may  be  found  after  his  decease. 
Should  the  testator  place  the  will  in  his  safe  deposit 
box  and  leave  no  instructions  with  the  company  as 
to  permitting  his  executor  to  open  the  box  after  his 
decease,  trouble  and  annoyance  may  be  occasioned. 

If  a  will  is  lost  or  destroyed,  a  correct  copy  thereof 
duly  sworn  to  may  be  admitted  to  probate  in  nearly 
all  jurisdictions.  It  is  suggested,  therefore,  that  the 
attorney  who  draws  the  will  should  keep  a  copy 
thereof.  In  some  places  it  is  provided  by  statute 
that  the  testator  may  enclose  the  will  in  a  sealed 
wrapper  and  deposit  it,  for  safe  keeping,  in  the 
registry  of  probate,  and  that  it  shall  be  delivered 
after  his  decease  to  the  executor  or  executors  named 
therein. 

There  are  statutes  in  most  States  declaring  that 
the  possessor  of  a  will  must  present  it  for  probate 
within  a  certain  period  after  the  testator's  decease 
or  he  will  be  proceeded  against,  and  also  statutes 
imposing  penalties  for  the  larceny  or  destruction  of 
wills. 


CHAPTER  XIX 

SUGGESTIONS  FOR  PREPARING  WILLS] 

THE  following  suggestions  are  of  a  general  nature 
and  of  almost  universal  application,  and  they  largely 
refer  to  points  which  will  be  found  hi  the  preceding 
chapters.  The  object  is  to  give,  in  concise  form, 
nearly  every  consideration  pertaining  to  the  real 
preparation  of  a  will,  as  well  as  to  suggest  to  the 
attorney  questions  which,  without  the  assistance  of 
a  printed  page,  he  may  very  likely  forget  to  ask 
the  testator. 

The  following  remarks  from  the  preface  to  the 
first  edition  of  "Hayes  and  Jarman's  Forms  of  Wills" 
merit  attention: 

"There  cannot,  indeed,  be  a  greater  mistake  than 
that  of  supposing  that  a  very  small  stock  of  legal 
terms,  added  to  a  very  ordinary  education,  suffices 
to  accomplish  the  will-maker.  On  the  contrary,  a 
will  is  alone  capable  of  exhausting  the  science  and 
ingenuity  of  the  most  able  conveyancer.  It  may 
embrace  every  allowable  modification  of  property, 
every  possible  scheme  of  disposition.  .  .  .  Even  of 
those  testators  whose  wills  are  prepared  under 
professional  service,  it  may  be  safely  affirmed,  that, 
while  the  intentions  of  not  a  few  are  frustrated  by 

481 


482  TESTAMENTAEY   FORMS 

failure  in  point  of  expression,  the  intentions  of  a  far 
greater  number  are  never  elicited  by  presenting  to 
their  consideration  the  arrangements  most  suitable 
to  their  views  and  circumstances.  .  .  .  On  the  other 
hand,  it  must  be  admitted  that  the  blame  of  mis- 
carriage is  not  unfrequently  attributable  to  the 
testator  himself.  Want  of  explicitness  or  candor  in 
the  communication  of  the  actual  state  of  his  property 
or  circumstances,  or  an  obstinate  attachment  to 
some  favorite  project,  may  render  abortive  the  most 
judicious  advice." 

The  initial  instruction  or  warning  for  the  attorney 
to  give  the  testator  is  to  make  as  simple  and  brief 
a  will  as  possible,  and  not  to  defer  the  vesting  of 
interests  and  the  final  settlement  of  his  estate,  un- 
less urgent  reasons  exist  therefor.  Long  and  in- 
volved wills  often  give  rise  to  litigation;  and  if 
trusts  not  to  terminate  before  the  expiration  of  a 
long  period  are  created,  births,  deaths,  and  the 
happening  of  unforeseen  events  may  produce  results 
entirely  different  from  those  the  testator  anticipated 
and  thought  that  he  had  provided  for.  Examples  of 
long  and  involved  wills  may  be  found  in  Remsen  on 
Wills,  466,  482,  and  532. 

I.  The  attorney  should  obtain  instructions  from  the 
testator  in  person. 

Great  as  is  the  danger  of  writing  a  will  from  written 
instructions,  it  is,  of  course,  still  greater  when  the 
instructions  are  conveyed  from  the  testator  to  the 
attorney  by  some  third  person.  An  attorney,  there- 
fore, who  draws  a  will  from  such  instructions,  with- 


SUGGESTIONS  FOR  PREPARING  WILLS     483 

out  sufficient  excuse,  may  be  regarded  as  highly 
reprehensible. 

In  Rogers  v.  Pittis,  1  Add.  30,  46-48,  it  appeared 
that  the  solicitor  who  drew  up  the  will  took  the  in- 
structions for  it  from  the  party  whom  it  purported 
principally,  if  not  solely,  to  benefit.  Sir  John  Nicholl 
expressed  himself  as  dissatisfied  with  the  solicitor's 
conduct,  not,  as  he  said,  for  the  sake  of  giving  pain 
to  that  individual,  "but  for  that  of  admonishing  pro- 
fessional gentlemen  generally,  that  where  instruc- 
tions for  a  will  are  given  by  a  party  not  being  the 
proposed  testator  —  a  fortiori,  where  by  an  interested 
party  —  it  is  their  bounden  duty  to  satisfy  them- 
selves thoroughly,  either  in  person  or  by  the  instru- 
mentality of  some  confidential  agent,  as  to  the 
proposed  testator's  volition  and  capacity,  —  or,  in 
other  words,  that  the  instrument  expresses  the  real 
testamentary  intentions  of  a  capable  testator,  — 
prior  to  its  being  executed,  de  facto,  as  a  will  at  all." 

Where  a  person  is  confined  to  the  house,  it  will  be 
necessary  to  take  instructions  in  the  sick-room,  but 
it  is  always  better  to  write  the  will  hi  some  other 
place. 

II.  The  attorney  should  inquire  fully  as  to  the  nature 
and  extent  of  the  testator's  property,  both  real  and 
personal. 

This  course  is  probably  rarely  pursued;  yet  no 
attorney  can  safely  prepare  a  will  disposing  of  even 
the  smallest  interests,  without  full  and  accurate  in- 
formation of  the  nature  and  extent  of  the  testator's 
investments. 


484  TESTAMENTARY   FORMS 

Such  information  is  indispensable  in  a  country 
composed  of  many  States,  each  having  its  own 
laws  regulating  the  disposition  and  distribution  of 
property. 

The  following  are  the  more  important  questions 
to  be  asked: 

1.  Has  the  testator  any  real  estate  in  another 
State  or  country? 

If  so,  it  should  be  properly  described.  See  p.  16. 
And  the  will  should  be  executed  with  due  formalities. 
See  p.  17. 

2.  If  real  estate  specifically  devised  is  subject  to 
a  mortgage  or  Hen,  made  by  the  testator,  is  it  his 
intention  that  such  mortgage  or  lien  shall  not  be 
paid  out  of  his  personal  estate?    See  pp.  91  et  seq. 

If  personal  property  specifically  bequeathed  is 
subject  to  a  mortgage,  or  is  pledged  hi  any  way,  is  it 
also  his  intention  that  such  incumbrance  shall  not 
be  discharged  out  of  his  personal  estate  ?  See  p.  96. 
Does  he  also  understand  the  law  pertaining  to 
specific  bequests  ?  See  pp.  235  et  seq. 

3.  If  the  testator  gives  a  life  estate  in  realty,  does 
he  desire  to  confer  power  upon  the  life  tenant  to 
lease  the  premises  for  a  period  which  may  extend 
beyond  his  life  ?    See  p.  159. 

If  the  testator  desires  to  give  a  life  estate  in  per- 
sonal property,  is  he  aware  that  in  most  cases  the 
creation  of  a  trust  is  desirable?  See  p.  161. 

4.  What  is  the  character  of  the  testator's  contracts 
both  as  to  real  and  personal  property  ?    Are  right& 
of  action  liable  to  survive  ?    See  p.  80. 


SUGGESTIONS   FOR   PREPARING   WILLS  485 

5.  Has  the  testator  any  trust  funds  or  other  prop- 
erty belonging   to  others  hi  his   possession  which 
are  not  distinguishable  from  the  mass  of  his  own 
property  ? 

If  so,  they  should  immediately  be  properly  marked 
and  designated.  See  p.  62. 

6.  Has  the  testator  so  far  given  validity  to  any 
declaration  of  trust  that  the  property,  which  is  the 
subject  thereof,  will  not  pass  by  his  will  ? 

For  example,  has  he  deposited  money  in  savings 
banks  in  trust  for  others  without  any  intention  of 
constituting  himself  a  trustee  ?  See  p.  63. 

7.  Has   the   testator   any   vested   or   contingent 
interests  ? 

If  so,  he  should  be  informed  that  if  he  makes  no 
provision  as  to  them  they  will  generally  pass  under 
the  residuary  clause.  See  p.  299. 

8.  Has  the  testator  any  power  of  appointment  as 
to  any  kind  of  property?    See  pp.  68  et  seq.,  433 
et  seq. 

Here  also,  if  he  does  not  refer  to  the  power,  the 
residuary  clause  may  be  a  due  execution  thereof. 
See  p.  299. 

9.  What  are  the  testator's  wishes  as  to  personal 
effects  and  furniture  ?   See  p.  229.    As  to  monuments, 
grave-stones,  burial  lots,  etc.  ?     See  pp.  81  et  seq.    As 
to  his  home  ?   See  p.  88.  As  to  the  winding  up  or  pres- 
ervation of  his  business  ?    See  pp.  101,  421,  423.    As 
to  life  and  other  insurance?    See  pp.  77,  345.    As  to 
joint  real  and  personal  property  ?    See  p.  99.    As  ta 
giving  executors  the  right  to  sign  notes,  etc.?    See 


486  TESTAMENTARY   FORMS 

p.  112.   As  to  pew  and  opera  box?    See  pp.  113, 114. 
As  to  manuscripts,  documents,  etc.?    See  p.  115. 

10.  Does  the  testator  desire  to  impose  any  condi- 
tions either  precedent  or  subsequent  as  to  payment 
of  legacies,  as  to  charging  legacies  or  the  expenses 
of  one's  education   upon  realty,   as   to  legacies  to 
an  executor  or  trustee,  as   to  marriage,  as  to  re- 
straint of  alienation,  as  to  disputing  the  will,  as  to 
residence,  as  to  gifts  to  servants,  employees,  etc.? 
See  pp.  163-188. 

11.  Is  the  testator  made  to  understand  the  inci- 
dents attending  the  form  or  character  of  legacies, 
as,  for  example,  general  (see  p.  242) ;  residuary  (see 
p.  299);  cumulative  or  substitutional  (see  p.  144); 
specific  or  demonstrative  (see  pp.  235-252)? 

12.  Does  the  testator  propose  to  give  legacies  to 
either  debtors  or  creditors  or  both  ?    See  pp.  253- 
268. 

13.  Does  he  desire  to  make  special  provisions  as 
to  the  payment  of  and  interest  upon  legacies  ?    See 
pp.  269-292. 

14.  Is  the  testator  informed  of  the  necessity  of 
accuracy  hi  the  description  of  both  legatees  and 
legacies  ?    See  pp.  209-234. 

15.  Is  the  testator  informed  of  the  law  of  lapsed 
legacies  and  of  the  circumstances  or  events  that  may 
possibly  revoke  a  will  ?    See  pp.  293,  307  et  seq. 

16.  What  is  the  extent  of  the  testator's  liabilities  ? 
This  is  one  of  the  most  important  considerations 

of  all,  as  it  may  be  advisable,  if  the  liabilities  are 
extensive,  to  provide  for  the  marshalling  of  assets, 


SUGGESTIONS   FOR   PREPARING   WILLS  487 

etc.,  for  the  payment  of  debts  and  legacies.  See 
pp.  329-333. 

The  attorney  should  especially  inquire  as  to 
indirect  liabilities,  such  as  indorsements,  etc.,  for,  if 
the  testator  is  liable  upon  any  ordinary  commercial 
obligations,  it  may  be  advisable  to  defer  the  pay- 
ment of  legacies  till  a  sufficient  time  has  elapsed  to 
determine  what  the  testator's  liability  actually  is. 
See  p.  278. 

Where  a  testator  is  apprehensive  that  there  may  be 
either  an  increase  or  a  depreciation  of  his  property 
between  the  execution  of  his  will  and  the  day  of  his 
death,  he  should  bear  in  mind,  if  he  makes  any  one 
person  a  residuary  legatee,  the  law  referred  to  upon 
p.  300.  If  he  does  not  desire  to  specifically  devise  or 
bequeath  the  greater  portion  of  his  estate,  one  of  the 
safest  methods  is  to  give  the  legatees  " shares"  or 
" portions,"  and  not  specified  amounts;  then  the 
legatees  will  only  take  their  designated  proportion  of 
what  remains  after  the  debts  have  been  paid.  See 
p.  250. 

17.  Is  the  testator  the  member  of  a  partnership  ? 
This  is  peculiarly  a  matter  of  interest  to  one  in 

active  business.  The  difficulty  of  anticipating  the 
future  is,  of  course,  apparent;  but  a  testator  may 
naturally  desire  to  make  some  provisions  as  to  con- 
tinuing his  business,  so  far  as  is  necessary  to  com- 
plete his  contracts.  See  p.  101. 

18.  When  it  comes  to  naming  the  executor  or  exec- 
utors see  that  the  following  matters  are  brought  to 
the  attention  of  the  testator,  —  the  bond  and  liabil- 


488  TESTAMENTARY   FORMS 

ity  thereon,  charges  of  administration,  authority  of 
majority  to  act,  debts,  funeral  expenses,  monument, 
etc.,  powers  to  sell,  mortgage,  lease,  etc.,  purchase  of 
property  of  estate  by  executors,  insurance,  taxation, 
compromise  and  arbitration,  employment  of  at- 
torneys, etc.,  suggestion  as  to  keeping  records, 
delegation  of  powers,  instructions  as  to  voting 
shares,  auditing  accounts  and  examining  securities, 
etc.  See  pp.  321-359. 

III.  The  attorney  should  inquire  fully  as  to  the 
testator's  personal  position  and  his  relations  to  his 
family. 

If  the  testator  is  single  he  can,  of  course,  dispose 
of  his  property  as  he  pleases,  so  long  as  he  does  not 
violate  any  rules  of  law;  but  a  single  testator  or 
testatrix  should  be  inf  ormed  of  the  rule  of  revocation 
in  some  jurisdictions,  in  case  of  marriage.  See  p.  306. 

If  the  testator  is  married,  he  should  be  thoroughly 
informed  as  to  the  claims  of  children,  posthumous 
children,  and  the  issue  of  deceased  children.  See 
pp.  51  et  seq.  Also  as  to  illegitimate  children.  See 
p.  216.  Also  as  to  adopted  children.  See  p.  216. 

If  the  testator  proposes  to  remember  his  children, 
he  should  be  asked  if  any  of  them  have  received  from 
him  advancements,  or  are  likely  to  receive  such  ad- 
vancements during  his  life,  and  whether  such  ad- 
vancements are  to  be  deducted  from  their  shares. 
See  pp.  256  et  seq. 

As  a  will  by  proof  becomes  a  matter  of  record,  it  is 
not  advisable  to  speak  either  in  praise  or  condemna- 
tion of  a  child  or  children,  unless  the  very  best 


SUGGESTIONS   FOR   PREPARING   WILLS  489 

reasons  exist  for  it.  See  Rose  v.  Porter,  141  Mass. 
309. 

If  a  legacy  is  given  to  a  daughter  or  other  married 
woman,  is  it  to  be  for  her  sole  and  separate  use? 
See  p.  431. 

If  the  testator  proposes  to  name  a  guardian  for 
a  child,  not  only  the  law  of,  but  practical  points 
relating  to,  guardianship  should  be  brought  to  his 
attention.  See  pp.  445  et  seq. 

The  rights  of  wife  or  husband  should  be  especially 
made  clear  to  the  testator  or  testatrix.  See  pp.  51 
et  seq. 

In  the  first  place,  it  should  be  learned  whether 
there  is  an  ante-nuptial  contract.  See  p.  54. 

Then  the  testator  or  testatrix  should  be  made  to 
clearly  understand  the  right  of  waiver  hi  case  of  dis- 
satisfaction with  the  provision  made  for  her  or  him. 
It  is  especially  the  duty  of  the  attorney  to  explain  the 
confusion  which  a  waiver  frequently  works  among 
the  other  provisions  of  the  will.  See  p.  55. 

IV.  Public  charities  and  trust  estates. 

If  a  charitable  trust  is  determined  upon,  important 
considerations,  including  direct  gifts  and  foundations 
before  and  after  death,  should  be  presented  to  the 
testator.  See  pp.  451-465. 

There  is  no  duty  devolving  upon  an  attorney  which 
should  be  so  faithfully  discharged  as  that  of  making 
clear  to  a  testator,  who  desires  to  create  a  trust  by 
his  will,  what  a  trust  really  implies.  With  the  in- 


490  TESTAMENTARY   FORMS 

crease  of  wealth  has  come  a  corresponding  increase 
in  the  number  of  trust  estates.  The  majority  of  suc- 
cessful men  seem  to  be  possessed  of  the  idea  that 
there  is  some  marvellous  benefit  to  be  derived  by 
placing  their  property  in  the  hands  of  trustees  for 
the  longest  period  of  time  which  the  law  allows.  Of 
course  cases  constantly  arise  which  make  the  crea- 
tion of  a  trust  almost  imperative,  but  generally  the 
testator's  intention  would  be  as  well  carried  out  and 
the  parties  in  interest  would  as  fully  enjoy  the  testa- 
tor's bounty,  if  the  gift  were  an  absolute  one. 

Where  the  beneficiary  is  past  middle  life,  and  the 
principal  upon  his  or  her  death  is  to  go  to  some  speci- 
fied person  or  persons,  the  purposes  of  the  trust  can 
be  easily  carried  out,  as  the  remainder-men  are  clearly 
defined,  and  the  period  when  the  property  is  to  vest 
is  not  long  deferred.  But  in  the  case  of  most  large 
estates,  the  period  of  vesting  is  put  off  till  the  expira- 
tion of  the  longest  time  allowed  by  law.  The  princi- 
pal of  the  trust  hi  the  mean  time  often  increases  of 
itself  without  any  addition  of  income;  the  beneficiary 
or  beneficiaries  at  last  die,  and  a  large  amount  of 
property  is  turned  over  to  some  individual  or  indi- 
viduals, who  were  very  likely  infants,  or  else  unborn, 
at  the  tune  of  the  testator's  decease.  Hence  the 
testator  really  thwarts  his  own  intention.  In  the 
fancied  protection  of  those  who  are  near  to  him,  he 
makes  an  ultimate  provision  of  the  most  liberal 
nature  for  those  whose  welfare  is  probably  of  little 
concern  to  him.  It  is  obvious  that  births  and  deaths 
are  matters  of  such  great  uncertainty  that  it  is  almost 


SUGGESTIONS   FOR   PREPARING   WILLS  491 

impossible  for  a  testator  to  defer  the  vesting  of  his 
estate  for  any  length  of  time,  with  any  probability 
that  the  course  of  events  will  be  such  as  to  carry  out 
his  cherished  intentions. 

If  the  testator  proposes  to  create  a  trust  out  of  the 
residuum,  he  should  first  see  that  personal  effects, 
etc.,  are  given  outright  (p.  302),  he  should  be 
informed  as  to  the  law  of  wasting  investments 
(pp.  415  et  seq.},  and  as  to  the  residuary  clause  as  a 
general  drag-net  (pp.  299  et  seq.). 

"The  man  who  locks  up  his  estate  for  three  gen- 
erations, or  longer,  hi  nine  cases  out  of  ten  does  his 
heirs  no  service,  and  entails  an  incumbrance  upon 
his  estate,  of  vastly  little  utility  to  any  one."  1  Red- 
field  on  Wills  (3d  ed.),  668,  n. 

However,  hi  many  cases  it  may  be  advisable  to 
create  a  trust  for  the  benefit  of  one  who  lives  hi  an- 
other State  or  country,  although  the  testator  desires 
to  make  the  gift  an  absolute  one;  as,  for  example,  in 
the  case  of  a  married  woman  domiciled  in  a  State  or 
country  the  laws  of  which  give  her  only  a  limited  in- 
terest in  property  bequeathed  to  or  acquired  by  her. 
The  trust  in  such  case  will,  of  course,  be  governed  by 
the  laws  of  the  testator's  domicile,  and  the  testator 
can,  if  he  chooses,  provide  for  the  disposition  of  the 
principal  by  power  of  appointment  to  be  exercised  by 
the  beneficiary. 

As  to  the  number  and  selection  of  trustees,  a  few 
suggestions  may  be  pertinent: 

The  experience  of  those  who  have  rilled  the  position 
is  that  the  number  should  rarely  exceed  two.  Where 


492  TESTAMENTARY   FORMS 

there  are  more  than  that  number,  and  frequently 
where  there  are  only  two,  unity  of  action  often 
becomes  so  inconvenient,  if  not  impossible,  that 
gradually  the  management  of  the  estate  is  largely 
intrusted  to  that  one  of  the  number  who  can  most 
easily  attend  to  it.  It  is  needless  to  remark  that  in 
the  case  of  gross  mismanagement  on  the  part  of  the 
sole  custodian  of  the  property,  the  parties  hi  inter- 
est may  find  it  difficult  to  obtain  satisfaction  of  the 
semi-acting  trustee  or  trustees,  provided,  of  course, 
they  gave  several  bonds. 

So  a  testator  frequently  appoints  a  son  or  near 
relative  to  act  as  co-trustee  with  some  friend  or  other 
disinterested  party.  The  son  or  other  relative,  look- 
big  upon  the  property  as  belonging  to  the  family, 
little  by  little  assumes  the  sole  management  thereof, 
and  his  co-trustee,  not  desiring  a  conflict,  acquiesces 
therein.  In  case  the  property  is  squandered,  the 
parties  hi  interest,  as  hi  the  case  just  referred  to, 
may  find  difficulty  hi  obtaining  a  remedy  at  law,  if, 
of  course,  the  liability  is  several. 

It  would  seem  that  a  man's  availability  for  the 
position  of  trustee  should  depend  upon  something 
besides  character,  position,  ability,  experience,  and 
wealth.  It  is  probable  that  one-half  of  the  invest- 
ments of  existing  trust  estates  are  in  unregistered 
securities  payable  to  bearer  and  capable  of  manual 
delivery.  The  opportunity  thus  offered  a  trustee  to 
hypothecate  them  for  his  own  obligations  may,  in  the 
hour  of  temptation,  be  eagerly  embraced.  The  posi- 
tion of  trustee,  therefore,  should  be  rarely  filled  by  a 


SUGGESTIONS   FOE   PREPARING   WILLS  493 

man  whose  business  relations  are  such  as  to  neces- 
sitate the  hiring  of  money.  For  this  reason  lawyers 
and  men  who  have  retired  from  active  business  gen- 
erally prove  the  most  reliable. 

If,  however,  the  trust  has  been  determined  upon, 
most  of  the  matters  in  the  preceding  pages  as  to 
the  creation  of  trusts  should  be  brought  to  the  testa- 
tor's notice.  See  pp.  360  et  seq. 

V.  The  use  of  words. 

"  Words,  hi  general,  are  to  be  taken  hi  their  ordi- 
nary and  grammatical  sense,  unless  a  clear  intention 
to  use  them  in  another  can  be  collected."  2  Jarman 
on  Wills  (6th  Am.  ed.),  772. 

But  "the  grammatical  construction,  or  the  order 
of  particular  sentences,  is  never  allowed  to  defeat  the 
general  intention  of  the  testator,  as  clearly  mani- 
fested by  all  the  provisions  of  the  will  taken  as  a 
whole."  Metcalf  v.  Framingham  Parish,  128  Mass. 
370,  376. 

But  grammatical  inaccuracy  hi  the  use  of  language 
should  be  carefully  avoided.  "It  may  be  said  gener- 
ally that  in  considering  the  obscure  provisions  which 
are  often  found  in  wills  little  help  is  to  be  obtained 
from  precedents."  Croft,  petr.,  162  Mass.  22,  26. 
Words  can  be  supplied  "only  when  necessary  to  carry 
out  the  apparent  intention  of  the  testator  as  gathered 
from  the  whole  will."  Butterfield  v.  Hamant,  105 
Mass.  338.  As  to  supplying  or  transposing  words, 
see  Seaver  v.  Griffing,  176  Mass.  59.  One  word  may 
be  held  to  mean  another,  as  "or"  may  be  construed 
"and"  to  give  effect  to  the  testator's  intention. 


494  TESTAMENTARY   FORMS 

Hunt  v.  Hunt,  11  Met.  88.  Indifference  in  the  use  of 
language,  either  grammatically  or  ungrammatically, 
in  the  belief  that  the  court  will  carry  out  the  testa- 
tor's intention  by  supplying,  transposing,  or  chang- 
ing words,  if  necessary,  is  reprehensible.  The  only 
safety  is  in  adherence  to  the  following  rule  laid 
down  by  an  eminent  lawyer:  "In  drafting  a  pro- 
vision don't  be  satisfied,  if  you  think  it  conveys 
the  meaning  you  intend  merely.  Mould  it  till  you 
are  satisfied  that  it  conveys  no  other  meaning." 

"Where  a  testator  uses  technical  words,  he  is  pre- 
sumed to  employ  them  in  their  legal  sense,  unless  the 
context  clearly  indicates  the  contrary."  2  Jarman  on 
Wills  (6th  Am.  ed.),  772.  As  to  "donors "  being  used 
by  mistake  for  "donees,"  and  as  to  "legacy"  being 
used  in  the  sense  of  "pecuniary  legacy,"  see  White 
v.  Massachusetts  Institute,  171  Mass.  84,  95,  98. 

When  it  is  necessary  to  use  the  same  word  more 
than  once  with  the  same  meaning  it  is  better  to  re- 
peat the  word,  and  not  use  a  synonym  or  a  synony- 
mous expression.  See  Moore  v.  Hegeman,  72  N.  Y. 
376. 

Repugnancy  is  most  carefully  to  be  avoided.  Be- 
fore the  execution  of  the  will  it  should  be  closely 
scrutinized,  to  see  if  its  various  parts  are  consistent 
and  harmonious. 

"Where  two  clauses  or  gifts  are  irreconcilable,  so- 
that  they  cannot  possibly  stand  together,  the  clause 
or  gift  which  is  posterior  in  local  position  shall 


SUGGESTIONS   FOR   PREPARING   WILLS  495 

prevail,  the  subsequent  words  being  considered  to 
denote  a  subsequent  intention."  1  Jarman  on  Wills 
(6th  Am.  ed.),  473. 

"Where  the  testator  struggles  with  the  utmost 
pertinacity  to  disinherit  a  child  or  other  heir,  hem- 
ming the  exclusion  round  with  all  manner  of  ingen- 
ious devices,  to  render  his  purpose  doubly  secure;  this 
very  extreme  caution,  and  the  strange  and  causeless 
labor  thus  taken  to  secure  an  unwise  or  a  vicious 
result,  has  proved  the  occasion  for  a  jury  to  declare 
the  entire  will  void,  as  the  offspring  of  a  diseased  or 
a  perverted  mind."  1  Redfield  on  Wills  (3d  ed.)> 
668,  n. 


APPENDIX  I 

FORMS   OF   WILLS 

FORM  I 

WILL  OF  AN  UNMAERIED  MAN 

Bequests  to  a  sister  and  to  a  brother,  who  is  made  executor. 
Another  sister  made  residuary  legatee. 

Know  all  Men  by  these  Presents: 

THAT  I,  RICHARD  ROE,  of,  etc.,  do  make  this  my 
last  will  and  testament,  revoking  all  wills  by  me 
at  any  time  heretofore  made. 

After  the  payment  of  my  just  debts  and 
funeral  expenses,  I  give,  devise,  and  bequeath 
as  follows: 

First.   I  give  and  bequeath  unto  my  sister,  Mar- 
garet  Roe,   all   the  pictures,   engravings,    Le  ac    f 
books,  and  household  furniture,  which  I   furniture 

T    aadmoney 

may  possess  at  the  tune  of  my  decease.    I 

also  give  and  bequeath  unto  her,  the  said  Margaret 

Roe,  the  sum  of  Three  Hundred  Dollars. 

Second.   I  give  and  bequeath  unto  my  brother, 
John  Roe,  the  sum  of  Five  Hundred  Dol-   Legacy 
lars;   and   I  constitute   and   appoint   the   executor 
said  John  Roe  the  executor  of  this  my  last  will. 

497 


498  TESTAMENTARY   FORMS  —  APPENDIX   I 

Third.  All  the  rest,  residue,  and  remainder  of  my 
Residue  property,  both  real  and  personal,  of  which 
I  shall  die  seized,  and  possessed  and  to  which  I  shall 
be  entitled  at  the  time  of  my  decease,  I  give,  devise, 
and  bequeath  unto  my  sister,  Sarah  Roe. 

In  testimony  whereof  I  hereunto  set  my  hand  and 
seal  this  tenth  day  of  January,  A.  D.  1878. 

RICHARD  ROE.     [L.  S.] 

Signed,  sealed,  published  and  declared  by  the  tes- 
tator as  and  for  his  last  will  and  testament,  in  the 
presence  of  us,  who,  at  his  request,  and  in  his  pres- 
ence and  the  presence  of  one  another,  have  hereunto 
subscribed  our  names  as  witnesses. 

A.  B. 

C.  D. 

E.  F. 

FORM  II 

WILL  OF  A  MARRIED  MAN 

Entire  estate  given  to  wife  absolutely.  She  is  made  executrix 
without  being  required  to  give  a  surety  or  sureties  on  her 
bond.  Children  living  or  to  be  born  excluded.  Wish  ex- 
pressed that  wife  comply  with  requests  set  forth  in  an  unat- 
tested  paper,  which  is  separate  from  the  will  and  in  no  sense  a 
part  thereof. 

THIS  is  the  last  will  of  me,  JOHN  DOE,  of,  etc. 

After  the  payment  of  my  just  debts  and  funeral 
expenses,  I  give,  devise,  and  bequeath  all  the  prop- 
Entire  es-  erty  and  estate,  both  real  and  personal,  of 
tatetowife  wnjcn  j  snaji  ^ie  seized  and  possessed,  and 

to  which  I  shall  be  entitled  at  the  time  of  my  de- 


FORMS   OP  WILLS  499 

cease,  to  my  wife,  Mary  Doe,  and  to  her  heirs  and 
assigns  forever.  I  constitute  and  appoint  the  said 
Mary  Doe  the  executrix  of  this  will,  and  direct  that 
she  give  neither  a  surety  nor  sureties  upon  her 
official  bond. 

I  purposely  give  no  bequest  in  this  will  to  my  only 
living  children,  James  and  Sarah  Doe,  and  I  exclude 
them  and  their  issue,  provided  either  or   children 
both  of  them  shall  die  before  me,  and  also   excluded 
any  and  all  children  that  may  be  born  to  me  after 
the  date  of  this  instrument,  from  any  claim  upon 
my  estate  of  every  nature  and  description. 

While  my  said  wife  is  to  be  unrestrained  in  the 
possession  and  enjoyment  of  my  entire  property  be- 
queathed and  devised  to  her  above,  —  the  Request 
real  estate  to  be  hers  in  fee-simple,  and  the  to  wife 
personal  property  to  be  hers  absolutely,  —  I  never- 
theless desire  her  to  comply  with  my  wishes  ex- 
pressed in  a  certain  paper  which  I  am  to  draw  up, 
and  which  will  be  found  among  my  papers  at  the 
tune  of  my  decease.  But  such  paper  neither  is  a 
part  of  this  testament,  nor  are  the  requests  therein 
contained  in  any  sense  legally  obligatory  upon  my 
said  wife. 

In  testimony  whereof  I  have  hereunto  set  my 
hand  and  seal  this  tenth  day  of  August,  A.  D. 
1881. 

JOHN  DOE.    [L.  S.] 

Signed,  etc.    [Three  witnesses.] 


500        TESTAMENTARY  FORMS  —  APPENDIX  I 
UNATTESTED  PAPER 

BOSTON,  AUGUST  11,  1881. 

WHEREAS  in  and  by  my  last  will  and  testament, 
dated  August  10,  1881,  I  gave  all  my  property  to 

my  wife,  Mary  Doe,  I  now  desire  to  ex- 
Request 

press  my  wishes  as  to  her  management  and 
disposition  of  the  same,  with  which  wishes  I  trust 
she  will  comply,  though  they  have  no  legal  validity 
or  force. 

If  it  becomes  necessary  for  her,  or  if  she  deems  it 
advisable,  to  reinvest  any  of  the  property  given  her 
by  my  will,  I  desire  that  she  shall  seek  only  those 
investments  which  yield  low  rates  of  interest,  and 
which  are  consequently  safe  and  reliable. 

I  have  made  no  provision  for  my  children  in  my 
will,  because  I  desire  my  wife  to  have  the  sole  con- 
trol and  enjoyment  of  my  property  during  her  life. 
I  desire  my  wife  to  assist  either  or  both  of  my  chil- 
dren, if  they  are  at  any  tune  in  affliction  or  suffering, 
using  only  her  income  for  that  purpose;  but  I  do  not 
desire  her  to  lend  them  money  in  any  way  whatever, 
not  even  if  the  safest  security  is  offered;  or  to  sign 
or  indorse  for  their  benefit  any  bill  of  exchange, 
draft,  promissory  note,  bond,  or  other  obligation, 
to  the  end  that  she  may  enjoy  during  life,  without 
hazard  or  restraint,  the  entire  property  given  her 
by  my  will. 

If  she  desires  to  dispose  of  her  property  by  will, 
I  trust  that  she  will  not  show  any  preference  in  her 
bequests  to  the  children;  and  if  either  dies  before 


FORMS   OF   WILLS  501 

her,  leaving  issue,  I  hope  that  she  will  give  to  such 
issue  the  share  which  she  would  have  given  to  the 
parent  if  living. 

JOHN  DOE. 


FORM  III 

WILL  OF  AN  UNMARRIED  MAN 

A  certain  building  and  real  estate  given  to  a  nephew,  with 
provision  that  he  shall  assume  any  mortgage  or  mortgages 
thereon.  The  business  there  carried  on,  together  with  the 
good-will  of  the  same,  and  the  plant,  machinery,  fixtures, 
etc.,  also  given  to  him,  with  provision  that  the  business  debts 
shall  be  paid  out  of  the  general  estate. 

Summer  residence  given  to  a  sister  for  life,  with  vested  remainder 
to  her  children  living  at  the  date  of  the  will.  Household 
effects  in  said  residence  given  to  the  sister  absolutely. 

A  friend  appointed  executor  and  given  a  legacy  as  a  mark  of 
personal  regard;  but,  in  the  event  of  his  death  before  the  tes- 
tator, the  legacy  to  go  to  his  children. 

Residue  given  to  two  other  nephews  and  the  survivor  of  them. 

THIS  is  the  last  will  of  me,  JOHN  BROWN,  of  Boston, 
in  the  County  of  Suffolk  and  Commonwealth  of 
Massachusetts. 

After  the  payment  of  my  just  debts  and  funeral 
expenses,  I  give,  devise,  and  bequeath  as  follows,  viz. : 

First.  I  give  and  devise  unto  my  nephew,  John 
Smith,  who  has  been  many  years  in  my  employ,  and 

to  his  heirs  and  assigns  forever,  the  lot  of 

Devise 

land    containing    about    three    thousand 
square  feet,  and  the  building  thereon,  situated  in 
said  Boston,  on  the  northeast  corner  of  Whig  and 
Winthrop  Streets;  for  a  more  particular  description 


502  TESTAMENTARY   FORMS  —  APPENDIX   I 

of  which  reference  may  be  had  to  the  deed  of  con- 
veyance of  said  land  to  me  from  X.  Y.,  dated  June 
13, 1869,  and  recorded  in  Suffolk  County  Registry  of 
Deeds,  Book  6,004,  page  211.  But  if,  at  the  time  of 
my  decease,  said  lot  of  land  is  subject  to 

Mortgage 

any  mortgage  or  mortgages  given  to  secure 
any  debt  or  debts  contracted  by  me,  my  said  nephew 
shall  assume  said  debt  or  debts  and  the  mortgage  or 
mortgages  given  as  security  therefor,  and  shall  not 
be  entitled  to  have  the  same  paid  out  of  my  personal 
estate. 

And  I  give  and  bequeath  unto  my  said  nephew 
the  business  of  box  manufacturing  carried  on  by 
Bequest  of  me  in  said  building,  including  the  plant, 
business  machinery,  fixtures,  utensils,  stock  in  trade, 
book-debts,  good-will,  and  effects  of  every  nature 
and  description  connected  therewith.  But,  of  course, 
all  debts  and  obligations  incurred  by  me  in  relation 
to  said  business,  which  may  be  outstanding  at  the 
tune  of  my  decease,  are  not  to  be  assumed  by  my 
said  nephew  or  discharged  out  of  said  stock  in  trade, 
but  are,  like  other  debts,  to  be  paid  out  of  my  general 
estate. 

Second.  I  give  and  devise  unto  my  sister, 
M.  N.,  wife  of  O.  P.,  of  Boston,  for  and  during  the 

term  of  her  natural  life,  my  summer  resi- 
Lif  e  estate  * 

dence  at  Lynn,  in  the  County  of  Essex, 

including  the  entire  premises  connected  therewith, 
all  of  which  are  situated  on  the  east  side  of  Pacific 
Avenue,  and  are  fully  described  in  the  devise  of  the 
same  to  me  in  the  will  of  my  father,  David  Brown, 


FORMS  OF  WILLS  503 

dated  January  10,  1858,  and  proved  in  the  Probate 
Court  for  the  County  of  Suffolk,  May  2,  1865.  After 
the  decease  of  my  said  sister,  I  give  and  devise  said 
residence  and  the  premises  connected  there-  , 

f  Remainder 

with  in  fee-simple  to  the  children  of  my 
said  sister,  M.  N.,  now  living,  i.  e.,  at  the  date  of 
this  will;  and  I  intentionally  exclude  from  any  inter- 
est whatever  in  this  devise  in  remainder  any  and  all 
children  born  to  my  said  sister  from  and  after  the 
date  of  this  will. 

I  give  and  bequeath  unto  my  said  sister,  A.  B., 

absolutely,  all  the  household  furniture  and 

Furniture 
effects  which  may  be  in  said  residence  at 

the  time  of  my  decease. 

Third.    I    constitute    and    appoint    my    friend, 
Thomas  Blank,  the  executor  of  this  my  last  will, 

and  I  give  and  bequeath  unto  him,  as  a 

Executor 
mark  of  personal  regard,  the  sum  of  One 

Thousand  Dollars.  I  direct  that  this  legacy  of  One 
Thousand  Dollars  shall  be  paid  to  him  even  if  for 
any  reason  he  fails  to  qualify  as  executor  . 

Legacy 

in  the  Probate  Court.     If,  however,  the 
said  Thomas  Blank  shall  die  before  me,  then  I  give 
and  bequeath  the  said  sum  of  One  Thousand  Dollars 
to  the  children  of  the  said  Thomas  living  at  the  tune 
of  my  decease,  to  be  equally  divided  among  them. 

Fourth.   All  the  rest,  residue,  and  remainder  of  my 
estate,  both  real  and  personal,  of  which  I  shall  die 

seized  and  possessed,  and  to  which  I  shall 

Residue 
be  in  any  way  entitled  at  the  tune  of  my 

decease,  I  give,  devise,  and  bequeath  to  my  nephews, 


504  TESTAMENTARY   FORMS  —  APPENDIX   I 

William  Smith  and  Joseph  Smith,  as  tenants  in 
common,  and  to  their  heirs  and  assigns  forever. 
But  if  either  the  said  William  or  Joseph,  or  both 
of  them,  shall  die  before  me,  leaving  issue  living  at 
the  tune  of  my  decease,  then  I  give  and  devise  the 
Tenants  in  parent's  share  of  said  rest,  residue,  and 
common  remainder  to  said  issue,  to  take  by  right 
of  representation;  and,  in  default  of  such  issue,  I  give 
and  devise  the  same  to  the  survivor  of  said  William 
and  Joseph;  and  if  both  the  said  William  and  Joseph 
shall  die  before  me,  only  one  of  them  leaving  issue 
living  at  the  time  of  my  decease,  I  give  and  devise 
the  entire  rest,  residue,  and  remainder  to  such 
issue. 

In  testimony  whereof,  I,  the  said  John  Brown, 
have  set  my  hand  and  seal  to  this  my  last  will  and 
testament,  written  upon  five  sheets  of  paper,  upon 
each  one  of  which  sheets  I  have  also  written  my 
name,  in  the  City  of  Boston,  in  the  Commonwealth 
of  Massachusetts,  this  fourth  day  of  January,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and 
seventy-eight. 

JOHN  BROWN.     [L.  S.] 
Signed,  etc. 

A.  B.,  450  Lincoln  Street,  Boston. 

C.  D.,  311  West  Washington  Street,  Boston. 

E.  F.,  109  North  William  Street,  Boston. 


FORMS   OF   WILLS  505 

FORM  IV 

WILL  OF  A  MARRIED  MAN 

Pecuniary  legacies  given  to  sons. 

Daughter  given  a  legacy  of  a  smaller  amount,  because  she  was 
provided  for  at  the  time  of  her  marriage. 

Residue  given  to  wife,  who  is  made  executrix,  without  giving 
a  surety  or  sureties  on  her  bond;  and  she  is  cautioned  not  to 
give  a  bond  to  pay  debts  and  legacies.  She  is  authorized  as 
executrix  to  sell  both  real  and  personal  estate,  and  purchaser 
is  not  required  to  see  to  the  application  of  the  purchase-money. 

Agreement  in  copartnership  articles  as  to  disposition  of  testa- 
tor's interest  in  said  copartnership  referred  to,  and  executrix 
authorized  to  fully  carry  out  the  same. 

Provision  made  that  the  executrix  shall  not  pay  legacies  till 
twenty-eight  months  after  the  testator's  death. 

THIS  is  the  last  will  of  me,  A.  B.,  of,  etc. 
After  the  payment  of  my  just  debts  and  funeral 
expenses,  I  give,  devise,  and  bequeath  as  follows,  viz. : 

First.   I  revoke  all  wills  by  me  at  any  , 

Revocation 

time  heretofore  made. 

Second.   I  give  and  bequeath  unto  each  of  my  two 
sons  [names]  the  sum  of  Twenty  Thousand 

Legacies 

Dollars. 

Third.  I  give  and  bequeath  unto  my  daughter 
[name],  wife  of  [name],  the  sum  of  Fifteen 

Legacy 

Thousand  Dollars;  and  I  thus  provide  for 
her  less  liberally  than  for  my  above-named  sons, 
because  I  gave  her  at  the  time  of  her  marriage  the 
sum  of  Five  Thousand  Dollars,  with  which   „ 

Reasons 

to  purchase  a  wedding  outfit  and  establish   for  pref- 

.  erence 

her  in  her  home. 
Fourth.   I  give,   devise,   and  bequeath  unto  my 


506  TESTAMENTARY   FORMS  —  APPENDIX   I 

wife  [name],  and  to  her  heirs  and  assigns  forever,  all 
Residue  the  rest,  residue,  and  remainder  of  my 
property,  both  real  and  personal;  and  I 
constitute  and  appoint  her  the  executrix  of  this  my 
last  will,  and  request  the  judge  of  probate  not  to 
require  a  surety  or  sureties  upon  her  offi- 
cial bond.  I  particularly  caution  my  said 
executrix  to  give  a  regular  bond,  and  not  one  to  pay 
debts  and  legacies;  so  that  in  the  event  of  a  defi- 
Suggestion  ciency  of  assets  (a  result,  however,  which 
as  to  bond  j  do  not  apprehend)  she  will  not  be  per- 
sonally held  upon  her  obligation.  And  I  authorize 
and  empower  her,  as  said  executrix,  if  in  the  settle- 
Power  ment  of  my  estate  she  deems  it  advisable, 
to  sell  both  real  and  personal  estate  by 
public  auction  or  by  private  sale,  and  execute  and 
deliver  such  deeds  and  other  instruments  of  transfer 
as  may  be  necessary  and  proper;  but  no  purchaser 
shall  be  required  to  see  to  the  application  of  the 
purchase-money. 

Fifth.  Whereas,  by  my  articles  of  copartnership, 
dated  the  third  day  of  October,  1864,  I  covenanted 
interest  in  and  agreed  with  my  partner  [name],  that 
partnership  jf  gaid  partnership  existed  at  the  time  of 
my  decease,  my  executrix  should  offer  to  him  my 
entire  interest  in  said  partnership  at  a  price  agreed 
upon  and  set  forth  in  said  articles  of  copartnership, 
as  will  more  particularly  appear  by  reference  thereto, 
now  I  hereby  request  and  direct  my  said  executrix 
to  carry  out  said  agreement  in  every  particular  as 
soon  as  can  be  conveniently  done  after  she  receives 


FORMS   OF  WILLS  507 

her  letters  of  administration,  and  to  that  end  I  confer 
upon  her,  as  said  executrix,  every  power  and  author- 
ity which  I  should  possess  if  living. 

Sixth.  Whereas  my  relations  with  business  men 
and  also  with  various  corporations  are  such  as  to 
require  the  indorsement  of  my  name  upon  Legacies 

,      .  ,  not  to  be 

various  promissory  notes  and  other  com-    paid  for 


mercial  obligations,  I  hereby  request  and 
direct  my  said  executrix  not  to  pay  the  months 
above-named  legacies  to  my  said  sons  and  daughter 
in  full  directly  after  the  payment  of  my  debts,  but 
to  wait  a  sufficient  tune,  not  to  exceed  twenty-eight 
months  from  the  day  of  the  probate  of  this  will, 
until  said  notes  or  other  obligations  are  paid  and 
discharged,  and  my  estate  is  no  longer  liable 
thereupon. 

But  at  any  time  within  said  twenty-eight  months 
and  before  my  estate  is  entirely  free  from  liability 
as  aforesaid,  my  said  executrix  may,  if  partial 
she  thinks  it  advisable,  make  small  ad-  P*?™^ 
vancements  of  money,  or  convey  other  property  to  a 
small  amount,  to  my  sons  and  daughter  above  named; 
and  such  advancements  and  conveyances  are  to  be 
regarded  as  proportional  payments  of  the  legacies 
given  to  them  by  this  will,  and  they  are  to  receive 
and  receipt  for  them  as  such.  And  my  said  sons  and 
daughter  are  not  to  be  entitled  to  any  interest  upon 
said  legacies  before  the  expiration  of  said  twenty- 
eight  months  from  the  probate  of  this  will;  but  after 
the  expiration  of  said  twenty-eight  months  they  shall 
receive  interest  at  the  rate  of  five  per  cent,  per  annum 


508  TESTAMENTARY   FORMS  —  APPENDIX   I 

upon  so  much  of  their  legacies  respectively  as  are 
then  unpaid. 

In  testimony  whereof,  Y.  Z.,  of,  etc.,  has,  in  my 
presence  and  by  my  express  direction,  and  in  the 
presence  of  the  three  subscribing  witnesses,  hereto 
signed  my  name  and  affixed  my  seal  this  tenth  day 
of  December,  A.  D.  1880. 

A.  B.,  byY.  Z.    [L.S.] 

The  following  alterations,  viz.,  the  erasure  of and  the 

interlineation  of in  the  third  line  on  the  second  page,  and 

the  entire  obliteration  of  the  eleventh  line  on  the  fifth  page, 
were  made  before  signing. 

We,  the  undersigned,  have  attested  the  execution 
of  the  foregoing  writing  by  Y.  Z.,  of,  etc.,  signing  the 
name  of  A.  B.,  of,  etc.,  in  his  presence  and  by  his 
express  direction,  and  in  the  presence  of  us,  together 
present  at  the  same  time;  and  we,  hi  the  presence  of 
the  said  A.  B.,  at  his  request,  and  in  the  presence  of 
one  another,  hereto  subscribe  our  names  as  witnesses. 

E.  F. 

G.  H. 

I.  J. 
CODICIL 

Will  confirmed.  Advancements  made  to  sons  to  be  deducted 
from  their  legacies,  and  advancements  made  to  daughter,  or 
to  her  husband,  to  be  deducted  from  hers;  but  no  interest 
to  be  claimed  thereon. 

I,  A.  B.,  of,  etc.,  make  this  codicil  to  my  last  will, 
dated  10th  of  December,  A.  D.  1880,  hereby  ratifying 
and  confirming  said  will  in  all  respects  save  as  changed 
by  this  instrument. 


FOKMS   OF   WILLS  509 

Whereas  by  said  will  I  gave  to  each  of  my  two 
sons  [names]  a  legacy  of  Twenty  Thousand  Dollars, 
I  now  order  and  direct,  if  at  the  tune  of  Advances 
my  decease  I  hold  any  promissory  note  or  to  sons 
notes  against  either  of  said  sons,  whether  barred  by 
the  Statute  of  Limitations,  or  not,  or  have  any  claim 
or  claims  against  either  of  them  as  may  appear  by 
book  balance  upon  my  ledger,  that  all  such  notes 
and  claims  shall  be  regarded  as  a  portion  of  my  estate, 
and  shall  be  deducted  from  the  respective  legacies 
given  to  them  by  said  will. 

And  whereas  by  said  will  I  gave  to  my  daughter 
[name]  a  legacy  of  Fifteen  Thousand  Dollars,  I  now 
order  and  direct  that  if  at  the  time  of  my  Advances 
decease  I  hold  any  such  notes  or  have  any  to  daushter 
such  claims  against  my  said  daughter  or  against 
her  husband  [name],  such  notes  or  claims  shall  also 
be  regarded  as  a  portion  of  my  estate,  and  shall 
be  deducted  from  the  said  legacy  given  to  my  said 
daughter  by  said  will. 

But  interest  is  not  to  be  reckoned  or  claimed  upon 

any  of  the  notes  or  book-charges  herein-   . 

Interest 

belore  referred  to. 
In  testimony  whereof  I,  A.  B.,  of,  etc. 

A.  B.    [L.  S.] 

Signed,  sealed,  published  and  declared  by  the 
testator  to  be  a  codicil  to  his  last  will,  in  the  presence 
of  us,  who,  etc. 

E.  F. 
K.  L. 
M.  N. 


510  TESTAMENTARY   FORMS  —  APPENDIX   I 

FORM  V 

WILL  OF  A  MARRIED  MAN 

Two  appointed  executors  and  trustees;  not  required  to  give 
sureties  on  their  bonds.  As  executors,  they  or  the  survivor 
of  them  authorized  to  sell  or  mortgage  real  and  personal 
estate.  As  trustees,  they  or  the  survivor  of  them  authorized 
to  sell,  invest,  and  reinvest  the  trust  estate,  the  wife's  written 
consent  having  been  first  obtained.  Purchasers  from  both  ex- 
cutors  and  trustees  not  to  see  to  the  application  of  the  purchase- 
money,  and  all  persons  taking  receipts  exempted  from  liability. 

Household  furniture,  horses,  carriages,  etc.,  given  to  wife  out- 
right. All  provisions  for  wife  to  be  in  lieu  of  dower. 

Legacy  of  one  thousand  dollars  given  to  the  executors  and  trus- 
tees or  to  the  survivor  of  them. 

Homestead  estate  given  to  the  trustees  to  permit  wife  to  occupy 
during  life,  with  provision  as  to  sale  and  purchase  of  another 
residence,  if  wife  in  writing  so  directs,  and  also  as  to  rebuild- 
ing, in  case  of  destruction  by  fire.  Power  of  appointment 
by  will  given  to  wife,  in  default  of  which  the  estate,  or  the  one 
purchased  in  lieu  thereof,  to  go  to  the  residuary  legatee. 

One  hundred  thousand  dollars  given  to  the  trustees  or  to  the 
survivor  of  them,  to  pay  the  net  income  to  testator's  wife  for 
life,  and,  after  her  decease,  to  convey  the  same,  discharged 
of  all  trust,  to  the  residuary  legatee. 

Executors  directed  to  purchase  annuity  upon  the  life  of  the 
testator's  aunt. 

Specific  legacy  given  to  a  brother,  not  to  be  exonerated  from 
incumbrances. 

Remainder,  whether  vested  or  contingent,  given  to  a  sister  of 
the  testator. 

Note  of  a  debtor  of  the  testator  to  be  given  up  to  him. 

Legacy  given  to  a  creditor  in  satisfaction  of  a  note. 

Residue  given  to  a  son  of  the  testator. 

Provision  made  as  to  marshalling  of  assets,  in  case  the  estate 
proves  insufficient  to  pay  debts  and  all  the  legacies. 

Know  all  Men  by  these  Presents: 

THAT  I,  A.  B.,  of,  etc.,  being  of  sound  and  dis- 
posing mind  and  memory,  do  make  this  my  last  will 


FORMS   OF   WILLS  511 

and  testament,  revoking  all  wills  by  me  at  any  time 
heretofore  made. 

After  the  payment  of  my  just  debts  and  funeral 
expenses,  I  give,  devise,  and  bequeath  as  follows,  viz. : 

First.  I  constitute  and  appoint  [name]  and  [name], 
the  executors  of,  and  the  trustees  under,  this  will, 
and  I  direct  that  they  be  exempt  from  _, 

\  r  f  Executors 

giving  a  surety  or  sureties  upon  their  offi-   and 
cial  bonds,  both  as  said  trustees  and  exec- 
utors.   I  authorize  and  empower  them,  as  such  ex- 
ecutors or  the  survivor  of  them,  their  or  his  heirs, 
executors,  and  administrators,  if,  hi  the   settlement 
of  my  estate,  they  deem  it  advisable,  to   Powerto 
sell  or  mortgage  both  real  and  personal   sell  or 

mortgage 

estate,  by  public  auction  or  by  private 
sale,  and  to  execute  and  deliver  all  deeds,  instru- 
ments, and  writings  necessary  to  transfer  a  proper 
title  thereto.  I  authorize  and  direct  them,  as  said 
trustees  or  the  survivor  of  them,  their  or  his  heirs, 
executors,  and  administrators,  to  invest  and  reinvest 
the  trust  estate  given  to  them  by  article  invest- 
"fifth  "  of  this  will,  either  in  sound  securi-  ments 
ties  which  pay  a  low  rate  of  interest,  or  in  productive 
real  estate  of  undisputed  title;  and  to  this  end  I  give 
them,  as  such  trustees  or  the  survivor  of  them,  their 
or  his  heirs,  executors,  and  administrators,  —  the 
consent  in  writing  thereto  of  my  wife,  named  below, 
having  been  first  obtained,  —  full  power  and  author- 
ity to  sell  both  real  and  personal  estate,  by  public 
auction  or  by  private  sale,  and  to  sign  and  deliver  all 
instruments  of  transfer  which  may  be  legally  nee- 


512  TESTAMENTARY   FORMS  —  APPENDIX   I 

essary  and  proper.    I  direct  that  the  purchasers,  at 

A  lication  an^  suc^  sa^es>  fr°m  both  my  said  execu- 
of  purchase-  tors  and  trustees,  or  the  survivor  of  them, 
shall  not  be  required  to  see  to  the  applica- 
tion of  the  purchase-money;  and  I  also  direct  and 
declare  that  the  receipts  of  both  my  said  executors 
and  trustees  to  all  persons  whatsoever,  for  all  moneys, 

securities,  or  effects  paid  or  delivered  to 
Receipts 

such  trustees  or  executors,  shall  exonerate 
the  persons  taking  the  same  from  liability  to  see  to 
the  application  of  the  moneys,  securities,  or  effects 
therein  mentioned. 

Second.  I  give  and  bequeath  unto  my  wife  [name] 
absolutely  all  the  carriages  and  carriage  horses,  with 
Carriages  ^ne  narnesses  and  other  appendages  be- 
movabie  longing  thereto,  of  which  I  shall  die  pos- 

effects,  fur- 

niture,  etc.,  sessed;  also  all  the  implements,  stock  of  hay, 
corn,  and  straw,  and  other  movable  effects 
which  shall  be  used  in  or  about  my  stable  at  the  tune 
of  my  decease;  also  the  gardening  implements  and 
other  portable  effects  which  shall  be  used  in  or  about 
my  gardens  and  grounds  at  the  tune  of  my  decease. 
I  also  give  and  bequeath  unto  my  said  wife  all  the  fur- 
niture, linen,  plate,  china,  glass,  books,  prints,  pictures, 
wines,  liquors,  fuel,  consumable  provisions,  and  other 
household  effects  which  shall,  at  my  decease,  be  in  or 
about  my  homestead  residence  hereinafter  referred  to. 
I  declare  that  the  provisions  for  my  said  wife  in 
in  lieu  of  this  will  shall  be  in  lieu  of  all  claims,  in- 
dower  eluding  dower,  which  she  would  have  had 
upon  my  estate  had  I  died  intestate. 


FORMS   OF   WILLS  513 

Third.   I  give  and  bequeath  One  Thousand  Dollars 
unto  my  said  executors  and  trustees,  as  a  mark  of 
personal  esteem,    to   be  equally   divided 
between  them.    In  the  event  of  the  death   executors 
of  either  of  them  before  me,  I  give  and   trustees 
devise  the  same  to  the  survivor. 

Fourth.  I  give  and  devise  my  homestead  estate 
[described]  to  my  said  trustees  or  the  survivor  of 
them,  their  or  his  heirs,  executors,  and  ad-  „ 

Homestead 

ministrators,  to  be  held  by  them  upon  the  estate 
following  trusts,  viz.:  to  permit  my  said 
wife  to  use  and  occupy  the  same  for  and  during  the 
term  of  her  natural  life,  they  applying  from  the 
income  of  the  property  given  them  in  trust  by  article 
" fifth"  of  this  will  an  amount  sufficient  to  pay  all 
ordinary  taxes  upon  the  premises,  all  necessary  re- 
pairs, and  the  premium  for  ample  insurance  upon  the 
buildings;  to  sell  the  said  homestead  estate  when- 
ever my  said  wife  shall  hi  writing  so  request,  and 
from  the  proceeds  purchase  a  lot  of  land,  with  house, 
for  my  said  wife  to  occupy,  and  stable,  if  necessary, 
adding  the  surplus,  if  any,  to  the  principal  of  the 
trust  estate  given  to  them  by  said  article  " fifth;"  in 
case  said  house  or  other  buildings  is  wholly  or  par- 
tially destroyed  by  fire,  to  rebuild  the  same  with  the 
proceeds  of  the  insurance  money,  or  purchase  or 
build  a  house  and  other  buildings,  as  my  said  wife 
shall  in  writing  direct,  adding  the  surplus,  if  any,  to 
the  principal  of  the  trust  estate  given  to  them  by 
said  article  "fifth;"  and,  upon  the  decease  of  my 
said  wife,  to  convey  said  homestead,  or  the  estate 


514  TESTAMENTARY   FORMS  —  APPENDIX   I 

purchased  in  lieu  thereof,  discharged  of  all  trust,  to 
any  person  or  persons,  corporation,  society  or  asso- 
ciation, whom  or  which  my  said  wife  shall  by  her 
last  will  name  and  appoint;  and  in  default  of  such 
appointment  to  convey  the  same  to  my  son  [name], 
mentioned  below,  as  my  residuary  legatee. 

Fifth.  I  direct  my  said  executors,  or  the  survivor 
of  them,  as  soon  as  convenient  after  my  decease,  to 
Trust  set  apart  to  themselves,  as  trustees,  prop- 
for  wife  erty  to  the  yalue  of  One  Hundred  Thou- 
sand Dollars,  and  to  reinvest  the  same  from  time 
to  tune,  if  necessary,  as  directed  by  article  " first"  of 
this  will;  to  pay  the  income  arising  therefrom,  after 
deducting  an  amount  sufficient  to  meet  all  contin- 
gent expenses,  including  those  referred  to  above  hi 
article  " fourth,"  to  my  said  wife,  every  three  months, 
or  of tener  if  they  shall  think  fit ;  and  upon  her  decease 
to  convey  and  transfer  the  entire  principal  sum  with 
accumulations,  if  any,  discharged  of  all  trust,  to  my 
son  [name],  mentioned  below  as  my  residuary  legatee. 

Sixth.  I  give  to  my  said  executors,  or  to  the  sur- 
vivor of  them,  the  sum  of  Three  Thousand  Dollars, 

T  ,  with  which  I  direct  them  to  purchase  from 
Legacy  for 

purchase  of  the  Columbia  Trust  Company  of,  etc.,  at 
the  expiration  of  a  year  from  the  day  of 
the  probate  of  this  will,  an  annuity  upon  the  life  of 
my  aunt  [name],  according  to  the  provisions  of  its 
charter  and  the  terms  adopted  by  its  directors  upon 
which  it  will  undertake  such  trusts.  I  mean  by  an 
annuity  upon  her  life  one  whereby  the  said  company 
shall  pay  to  my  said  aunt  a  large  income  during  her 


FORMS   OF  WILLS  515 

life,  and,  upon  her  decease,  shall  become  absolutely 
entitled  to  the  principal  sum  of  Three  Thousand 
Dollars  with  accumulations,  if  any. 

Seventh.  I  give  and  bequeath  unto  my  brother 
[name],  as  a  specific  legacy,  two  one-thousand-dollar 
first-mortgage  bonds  of  the  Kentucky  Cen-  specific 
tral  Railroad,  numbered  2018  and  2019 
respectively;  and  if,  at  the  tune  of  my 
decease,  either  or  both  of  said  bonds  are  pledged 
for  any  debt  or  debts  contracted  by  me,  the  said 
[name]  shall  take  the  same  subject  to  such  incum- 
brance  thereon,  and  shall  not  be  entitled  to  have 
said  debt  or  debts  paid  out  of  my  personal  estate. 

Eighth.  Whereas  [name],  by  his  last  will  dated, 
etc.,  and  proved,  etc.,  gave  certain  real  estate  therein 
described  to  [name]  for  life,  and  after  his  Devise  of 
decease  to  myself  and  others  in  fee,  dis-  remainder 
charged  of  all  trust,  now  I  give,  devise,  and  bequeath 
all  my  right,  title,  and  interest  therein  and  thereto, 
whether  the  same  is  a  vested  or  a  contingent  re- 
mainder, or  has  become,  by  the  death  of  the  life 
tenant,  an  estate  in  possession,  to  my  sister  [name], 
and  to  her  heirs  and  assigns  forever. 

Ninth.  I  release  [name]  from  all  liability  to  me  for 
and  upon  the  debt  which  he  owes  me  represented 
by  his  note  to  me  for  one  thousand  dollars,  Release  of 
dated,  etc.,  payable  five  years  after  date,  debtor 
or  so  much  thereof  as  shall  be  owing  at  my  death, 
and  all  interest  and  arrears  thereon  down  to  and 
including  the  day  of  my  death;  and  I  direct  my  said 
executors  or  the  survivor  of  them  to  cancel  and 


516  TESTAMENTARY   FORMS  —  APPENDIX   I 

deliver  the  said  note  to  the  said  [name],  or,  in  the 
event  of  his  death  before  me,  to  his  executors  or 
administrators. 

Tenth.  I  give  and  bequeath  unto  [name]  the  sum 
of  Eight  Hundred  Dollars  in  full  satisfaction  of  my 
Legacy  to  note  of  Four  Hundred  Dollars  to  him, 
dated,  etc.,  payable,  etc.,  and  all  interest 
which  may  be  due  thereon  when  this  legacy  is  paid; 
and  I  direct  my  said  executors  or  the  survivor  of 
them  to  pay  said  legacy  to  said  [name],  only  upon 
the  condition  that  said  note  shall  be  cancelled  by 
the  said  [name]  or  his  legal  representatives,  and  given 
up  to  my  said  executors  or  the  survivor  of  them. 

Eleventh.  I  give,  devise,  and  bequeath  unto  my 
son  [name],  and  to  his  heirs  and  assigns  forever,  all 

the  rest,  residue,  and  remainder  of  my 
Residue  .  , 

property,  both  real  and  personal,  of  which 
I  shall  die  seized  and  possessed,  and  to  which  I  shall 
be  entitled  at  the  tune  of  my  decease. 

Twelfth.  If  the  residue  given  to  my  said  son  by 
the  preceding  article  " eleventh"  shall  prove  in- 
T.  .  .  sufficient  for  the  payment  of  my  debts 
as  to  and  the  legacies  hereinbefore  bequeathed, 

then  I  direct  my  said  executors  or  the  sur- 
vivor of  them  to  apply  my  assets,  after  all  debts 
have  been  paid,  first,  to  the  payment  in  full  of  the 
bequests  to  my  wife  of  the  homestead  estate  and  One 
Hundred  Thousand  Dollars  in  trust,  and  of  the  car- 
riages, household  furniture,  etc.,  given  to  her  out- 
right; second,  to  the  payment  in  full  of  the  specific 
legacy  to  my  brother  given  by  article  " seventh," 


FORMS   OF   WILLS  517 

and  the  legacy  in  satisfaction  of  my  note  given  by 
article  "tenth;"  and,  third,  to  the  payment  of  such 
proportion  of  the  other  legacies  as  the  balance  divided 
pro  rata  shall  be  sufficient  for. 
In  testimony  whereof,  etc. 

[Signature  and  seal.} 

[Attestation  clause  and  three  witnesses.] 


FORM  VI 

WILL  OF  A  MARRIED  WOMAN 

Husband  appointed  executor  with  power  of  sale;  not  required 
to  give  sureties  on  bond. 

Wearing  apparel  and  household  furniture  given  to  a  sister. 

Trust  estate  over  which  the  testatrix  has  power  of  appointment 
given  to  her  son. 

Ten  thousand  dollars  which  the  executor  is  directed  to  receive 
from  a  trust  company  given  to  testatrix's  daughter. 

Certain  bonds  given  to  the  husband  in  trust,  with  power  to 
change  the  securities  and  apply  the  net  income  for  the  main- 
tenance and  support  of  testatrix's  minor  daughter.  The 
bonds  or  property  purchased  in  lieu  thereof  to  be  hers  on 
arriving  at  twenty-one,  or,  in  case  of  her  death  before  that 
tune,  to  go  to  the  son  mentioned  in  article  "third." 

Residue,  if  any,  given  to  the  testatrix's  husband. 

All  provisions  for  husband  to  be  in  lieu  of  curtesy. 

THIS  is  the  last  will  of  me,  A.  B.,  of,  etc.,  wife  of 
C.  D.,  etc. 

After  the  payment  of  my  just  debts  and  funeral 
expenses,  I  direct  that  my  property  shall  be  dis- 
posed of  in  accordance  with  the  following  direc- 
tions, viz.: 


518  TESTAMENTARY   FORMS  —  APPENDIX   I 

First.   I  appoint  my  husband,  C.  D.,  the  executor 

of  this  will,  and  I  release  him  from  giving 
Executor 

a  surety  or  sureties  upon  his  official  bond. 

I  authorize  him  to  sell  real  or  personal  estate  by 
private  sale  or  by  public  auction,  if  he  deems  it 
Power  advisable  for  the  payment  of  debts  and 
legacies,  and  to  convey  the  same  by  proper 
deeds  of  conveyance. 

We   .  Second.   I  give  and  bequeath  my  entire 

apparel,       wearing  apparel  and  household  furniture 
to  my  sister  [name]. 

Third.  Whereas  my  father  [name],  in  and  by  his 
last  will,  dated  June  3,  1849,  and  proved  hi  the 
Execution  Probate  Court  for  the  County  of,  etc., 
of  appoint-  April  3,  1857,  gave  to  certain  trustees 
ment  therein  named  and  their  successors  in 

trust  the  sum  of  Twenty  Thousand  Dollars,  the  net 
income  to  be  paid  to  me  during  my  life,  and  the 
principal,  with  its  accumulations,  if  any,  to  be  paid 
over  and  transferred  at  the  time  of  my  decease,  dis- 
charged of  all  trust,  to  such  person  or  persons  as  I 
might  by  any  instrument  in  writing  designate  and 
appoint,  now,  hi  the  exercise  of  the  said  power  and 
of  every  other  power  now  or  at  the  time  of  my 
decease  me  hereunto  enabling,  I  do  hereby  give, 
devise,  and  bequeath  the  said  principal  sum  of 
Twenty  Thousand  Dollars,  with  accumulations,  if 
any,  to  my  son  [name],  and  to  his  heirs  and  assigns 
forever. 

Fourth.  I  direct  my  said  executor  to  receive  from 
the  Winthrop  Trust  and  Loan  Company  of,  etc.,  the 


FORMS   OF  WILLS  519 

sum  of  Ten  Thousand  Dollars,  and  all  interest  and 
accumulations  thereon,  or  the  real  estate,  Bequest  of 
stocks,  notes,  bonds,  and  mortgages  in  lieu  dtufunder 
of  said  sum,  with  interest  and  accumu-  indenture 
lations,  which  by  the  terms  of  a  contract  hi  writing 
between  said  company  and  my  uncle  [name],  executed 
the  second  day  of  February,  1847,  the  said  company 
agrees  to  assign,  transfer,  and  pay  to  my  executors 
or  administrators  in  sixty  days  after  proof  of  my 
decease.  And  I  give,  devise,  and  bequeath,  and 
direct  my  said  executor  to  pay  and  deliver,  said 
principal  sum  of  Ten  Thousand  Dollars,  with  inter- 
est and  accumulations,  if  any  or  the  real  estate, 
stocks,  notes,  bonds,  and  mortgages  in  lieu  thereof, 
to  my  daughter  [name],  and  to  her  heirs  and  assigns 
forever. 

Fifth.   I  give  and  bequeath  unto  my  daughter 
[name],  provided  she  is  twenty-one  years  of  age  or 
over  at  the  time  of  my  decease,  fifteen  one-    specific 
thousand-dollar  first-mortgage  six  per  cent.    beiuest 
bonds  of  the  Penobscot  Railroad  Company,  num- 
bered 1018  to  1032  inclusive.     If,  however,  she  is 
under  twenty-one  years  of  age  at  the  time  of  my 
decease,  then  I  give  and  bequeath  said 
bonds  to  my  said  husband,  C.  D.,  but  in 
trust,  nevertheless,  to  be  managed  by  him  in  accord- 
ance with  the  following  instructions;  I  direct  him 
from  time  to  tune  to  pay  over  the  net  income  arising 
from   said  i  bonds   to   my   said   daughter  Application 
[name],  or  apply  the  same  as  he  shall  think   of  mcome 
fit,  for  her  personal  maintenance  and  support,  or 


520  TESTAMENTARY   FORMS  —  APPENDIX   I 

otherwise  for  her  personal  benefit,  or  pay  the  same 
or  such  part  thereof  as  he  shall  think  fit  to  any 
person  or  persons  to  be  so  applied,  without  liability 
on  the  part  of  my  said  trustee  to  inquire  into  the 
application  thereof. 

If  my  said  trustee,  for  any  reason,  shall  regard 
said  bonds  as  an  insecure  investment,  I  authorize  him 
Change  of  to  sell  the  same  and  purchase  other  secur- 
investment  j^eg  in  jjeu  thereof,  applying  and  disposing 

of  the  net  income  arising  therefrom  as  he  is  directed 
to  apply  and  dispose  of  the  income  derived  from  said 
bonds.  If  my  said  daughter  shall  die  before  arriving 
at  the  age  of  twenty-one  years,  then  I  give  and  be- 
queath said  bonds,  or  the  securities  purchased  in 
Termina-  lieu  thereof,  discharged  of  all  trust,  to  my 
tion  of  trust  son  [name^  mentioned  in  article  "  third" 

of  this  will.  But  if  my  said  daughter  shall  reach  the 
age  of  twenty-one  years,  then  I  direct  my  said  trus- 
tee to  deliver  to  her  said  bonds,  or  the  securities 
purchased  in  lieu  thereof,  and  the  same  shall  be  her 
own  absolute  property  and  estate  discharged  of  all 
trust. 

Sixth.  The  rest,  residue,  and  remainder  of  my 
property,  if  any,  both  real  and  personal,  I  give,  de- 
Residue  to  vise,  and  bequeath  to  my  said  husband, 
C.  D.,  and  to  his  heirs  and  assigns  forever; 
and  I  declare  that  the  provisions  for  him  in  this  will 
shall  be  in  lieu  of  all  claims,  including  curtesy, 
which  he  would  have  had  upon  my  estate  had  I  died 
intestate. 

In  testimony  whereof  I  have  hereunto   set  my 


FORMS   OF   WILLS  521 

hand    and    seal    this    fifth    day    of    May,    A.  D. 
1884. 

[Signature  and  seal.] 

[Attestation  clause  and  witnesses.] 


FORM  VII 

WILL  OF  AN  UNMARRIED  MAN  1 

Two  appointed  executors  and  trustees,  and  all  executors  and 
trustees,  whether  original  or  substituted,  exempt  from  giving 
a  surety  or  sureties  upon  their  bonds. 

Power  to  sell  given  to  executors.  Power  to  sell  and  vary  securi- 
ties given  to  trustees.  Purchasers  from  both  executors  and 
trustees  not  required  to  see  to  the  application  of  the  purchase- 
money,  and  those  taking  receipts  exonerated  from  liability. 

Trustees  directed  to  keep  the  funds  and  accounts  of  the  various 
trust  estates  separate  and  distinct. 

The  net  income  of  ten  thousand  dollars  given  to  brother  during 
life,  but  not  to  be  alienable  or  liable  to  be  taken  by  his  cred- 
itors. Trustees  authorized  to  pay  him  only  a  part  of  the  in- 
come, to  withhold  the  same  entirely,  or  to  apply  the  whole  or 
any  part  thereof  for  the  support  and  maintenance  of  his  wife 
and  children;  and  may  add  income  to  principal.  Upon  the 
death  of  the  beneficiary,  principal  given  to  his  wife,  and,  in 
the  case  of  her  decease,  to  her  children. 

The  net  income  of  ten  thousand  dollars  given  to  a  sister,  with 
provision  as  to  termination  of  the  trust,  by  instalments,  upon 
arriving  respectively  at  thirty  and  forty  years  of  age.  Upon 
her  death,  before  the  trust  has  fully  terminated,  the  entire 
principal,  with  accumulations,  then  hi  the  hands  of  trustees, 
given  to  her  children. 

The  net  income  of  ten  thousand  dollars  and  a  part  of  the  prin- 
cipal, if  necessary,  to  be  applied  for  the  clothing,  board,  etc., 


1  The  difference  between  this  and  the  succeeding  form  should  be 
carefully  noted.  It  is  assumed  that  the  property  disposed  of  by 
both  wills  is  of  the  same  amount. 


522  TESTAMENTARY   FORMS  —  APPENDIX  "l 

of  an  aunt.  Upon  her  death,  expenses  of  last  sickness  and 
funeral  expenses  to  be  paid  from  the  principal,  the  balance  of 
which  to  go  to  an  educational  institution. 

The  net  income  of  ten  thousand  dollars  to  be  paid  to  a  friend, 
with  power  to  terminate  the  trust  in  his  favor  at  any  time  in 
the  exercise  of  a  reasonable  discretion.  If  trust  not  so  ter- 
minated, principal,  upon  the  death  of  the  beneficiary,  to  go 
to  his  children. 

Net  income  of  the  residue  given  to  two  brothers  during  their 
joint  lives,  and,  upon  the  death  of  either,  to  the  survivor 
during  his  life.  Upon  the  death  of  such  survivor,  principal 
given  to  nephews. 

Number  of  executors  and  trustees  to  remain  two,  and  the  words 
"my  executors,"  "my  said  executors,"  and  "my  trustees," 
"my  said  trustees,"  to  include  executors  or  trustees  for  the 
time  being,  whether  original  or  substituted. 

THIS  is  the  last  will  of  me,  A.  B.,  of,  etc. 

After  the  payment  of  my  just  debts  and  funeral  ex- 
penses, I  give,  devise,  and  bequeath  as  follows,  viz.: 

First.  I  constitute  and  appoint  [name]  and  [name] 
the  executors  of,  and  the  trustees  under,  this  my 

Executors     ^as*  w^t  an(*  ^  exempt  au<  executors  of, 

and  and  trustees  under,  this  will,  whether  orig- 

trustees  ' 

inal  or  substituted,  from  giving  a  surety 

or  sureties  upon  the  bonds  required  of  them  as  said 

executors  and  trustees.     By   substituted 
Bonds 

executors   are  meant,  of  course,  adminis- 
trators with  the  will  annexed. 

I  authorize  my  said  executors  to  sell  both  real  and 
personal  estate  by  private  sale  or  by  public  auction, 
Power  of  for  the  payment  of  debts  and  for  the  pur- 
pose of  investing  the  trust  estates  herein- 
after created,  and  to  execute  and  deliver  such  deeds 
of  conveyance  or  other  instruments  of  transfer  as 
may  be  necessary  to  pass  a  proper  title  to  the  same. 


FORMS   OF  WILLS  523 

I  authorize  my  said  trustees  from  time  to  time  to 
invest  and  reinvest  the  various  trust  estates  herein- 
after bequeathed  to  them,  if  in  their  judg-  invest- 


ment they  deem  it  advisable,  always  pur-    ™ 


chasing  sound  securities  which  pay  a  low    ments 
rate  of  interest,  or  other  reliable  property,  real  or 
personal;  and  to  this  end  I  empower  them  to  sell 
real  and  personal  estate,  either  by  public  auction  or 
by  private  sale,  and  to  execute  such  instruments  as 
may  be  necessary  to  transfer  the  title  thereto.    But 
no  purchaser  from  my  said  executors  or   Applica- 
trustees  shall  see  to  the  application  of  the   p^chase- 
purchase-money,  and  the  receipts  of  my   money 
said  executors  and  trustees  for  all  moneys  and  effects 
paid  or  delivered  to  them  by  virtue  of  this  will  shall 
exonerate  the  persons  taking  the  same  from          . 
all  liability  to  see  to  the  application  or 
disposition  of  the  money  or  effects  therein  mentioned. 
I  direct  my  said  trustees  to  keep  the  funds  of  the 
several  trust  estates  created  by  this  will    c 

separate 

separate  and  distinct,  and  I  enjoin  upon    trust 
them  a  similar  caution  in  regard  to  keeping 
their  accounts  of  the  same. 

Second.  I  give  and  bequeath  to  my  said  trustees 
the  sum  of  Ten  Thousand  Dollars  hi  trust,  to  invest 
the  same  as  above  directed,  and,  after  , 

Trust 

deducting  an  amount  sufficient  to  meet  all 
contingent  expenses,  to  pay  over  the  balance  of  the 
income  once  every  quarter,  or  oftener  if  they  shall 
deem  advisable,  to  my  brother  [name]   during  his 
natural  life.    I  direct  that  said  income  shall  not  be 


524  TESTAMENTARY   FORMS  —  APPENDIX   I 

alienable  by  my  said  brother  [name],  either  by  assign- 
Alienation,  ment  or  by  any  other  method,  and  that 
etc>  the  same  shall  not  be  subject  to  be  taken 

by  his  creditors  by  any  legal  process  whatever;  nor 
shall  the  same  pass  hi  any  event  to  his  assignee  or 
trustee  under  any  trust  deed  that  may  be  executed 
by  him  or  under  any  insolvent  or  bankrupt  law, 
state  or  national.  I  authorize  my  said  trustees,  in 
Dis  osi-  their  discretion,  to  pay  only  such  part  of 
tion  of  said  income  to  my  said  brother  [name]  as 
my  said  trustees  may  deem  sufficient  for 
his  use  and  benefit,  or  to  entirely  withhold  such 
income  from  him,  expending  the  whole  or  any  part 
thereof,  as  they  may  deem  advisable,  for  the  support 
and  maintenance  of  his  present  wife  [name]  and  chil- 
dren, or  hi  case  of  her  decease  before  my  said  brother, 
for  the  support  and  maintenance  of  the  children 
alone.  If  at  the  expiration  of  every  year  beginning 
Accumula-  with  a  year  from  the  day  of  my  decease 
there  is  in  the  hands  of  my  said  trustees  a 
balance  of  income  which  they  do  not  propose  to  pay 
over  to  my  said  brother,  or  to  expend  for  the  support 
and  maintenance  of  his  wife  and  children,  then  I 
direct  them  to  add  the  same  to  the  principal  sum  of 
Ten  Thousand  Dollars;  and  the  income  of  all  sums 
added  to  the  principal  is,  of  course,  to  be  disposed 
of  as  the  income  of  the  original  principal  to  which 
Termina  ^ne  sums  nave  been  added.  Upon  the 
tion  of  decease  of  my  said  brother  I  give  and  be- 
queath said  principal  sum  of  Ten  Thousand 
Dollars,  with  all  its  accumulations,  if  any,  discharged 


FOEMS   OF   WILLS  525 

of  all  trust,  to  [name],  the  said  present  wife  of  my  said 
brother,  and,  if  she  shall  have  deceased,  then  to  her 
children  by  my  said  brother  living  at  the  tune  of  his 
decease,  to  be  equally  divided  among  them. 

Third.  I  give  and  bequeath  to  my  said  trustees 
the  sum  of  Ten  Thousand  Dollars  in  trust,  with  all 
powers  of  investment  and  reinvestment  , 

.  Trust 

given  above,  and  I  direct  them  to  pay  the 
net  income  thereof  annually,  or  as  much  oftener  as 
they  may  deem  best,  to  my  sister  [name],  wife  of 
[name],  during  the  continuance  of  this  trust,  as  here- 
inafter provided.  I  direct  my  said  trustees  to  pay 
over  and  deliver  to  her,  when  she  arrives  at  the  age 
of  thirty  years,  one  half  of  said  principal  Temina_ 
sum  of  Ten  Thousand  Dollars,  with  its  ac-  tion  by  in- 
cumulations,  if  any,  discharged  of  all  trust, 
and  after  paying  to  her  the  net  income  of  the  other 
half  till  she  arrives  at  the  age  of  forty  years,  then  to 
pay  over  and  deliver  to  her  the  remaining  half,  with 
its  accumulations,  if  any,  discharged  of  all  trust.  In 
the  event  of  the  death  of  my  said  sister  before  this 
trust  has  fully  terminated,  I  direct  my  said  trus- 
tees to  pay  over  and  deliver  all  or  so  much  of  the 
principal  sum  of  Ten  Thousand  Dollars,  with  its 
accumulations,  if  any,  as  may  be  in  their  possession, 
discharged  of  all  trust,  to  the  children  of  my  said 
sister  living  at  the  tune  of  her  decease,  to  be  equally 
divided  among  them. 

Fourth.  I  give  and  bequeath  to  my  said  trustees 
the  sum  of  Ten  Thousand  Dollars  hi  trust,  with  all 
powers  of  investment  and  reinvestment  given  above, 


526  TESTAMENTARY   FORMS  —  APPENDIX   I 

and  I  direct  them  to  apply  the  net  income  thereof  to 
Trust  for  or  ^or  *ne  clothing,  board,  lodging,  main- 
support,  tenance,  and  support,  or  otherwise  for  the 

etc 

personal  and  peculiar  benefit  of  my  aunt 
[name])  during  her  life,  at  such  tune  or  times,  in  such 
portions  and  in  such  manner  in  all  respects,  as  my 
trustees  shall  think  most  conducive  for  her  comfort 
and  convenience,  with  full  power  to  expend  a  part  of 
the  principal  for  any  or  all  of  those  purposes,  if,  in 
their  judgment,  the  net  income  shall  prove  insuffi- 
cient therefor.  After  the  decease  of  my  said  aunt 
I  order  the  following  disposition  of  what  remains  of 
the  said  principal  sum  of  Ten  Thousand  Dollars.  I 
Termina-  direct  my  said  trustees  to  pay  the  expenses 

of  the  last  sickness  and  the  funeral  ex- 
penses of  my  said  aunt  therefrom,  and  then  to  pay 
over  and  transfer  the  balance,  if  any,  discharged  of 
all  trust,  to  the  Trustees  of  the  Massachusetts  Acad- 
emy of  said  Boston,  to  be  expended  for  the  benefit 
of  said  Academy,  agreeably  to  the  provisions  of  its 
charter  and  by-laws. 

Fifth.  I  give  and  bequeath  to  my  said  trustees 
the  sum  of  Ten  Thousand  Dollars  hi  trust,  to  invest 

the  same  as  above  directed,  and  to  pay 
Trust 

over  the  net  income  arising  therefrom  semi- 

annually,  or  oftener,  as  they  may  deem  proper,  to 
my  friend  [name],  during  his  natural  life,  or  so  long 
as  this  trust  may  continue,  as  provided  below.  I  au- 
thorize my  said  trustees,  hi  the  exercise  of  a  reason- 
able discretion,  to  terminate  this  trust  at  any  time 
during  the  life  of  the  said  [name],  by  paying  and 


FORMS   OF  WILLS  527 

delivering  to  him  the  principal  sum  of  Ten  Thousand 
Dollars,  with   its  accumulations,   if  any, 

1*1  i**ii  i          •  (•     i  i  Terminal" 

discharged  of  all  trust;  but  if  they  do  not  tionby 
deem  it  advisable  to  terminate  the  same  o/a^cleSh 
during  the  life  of  said  [name],  then  I  author-  9f  .bene~ 

ficiary 

ize  my  said  trustees,  upon  the  death  of  the 
said  [name],  to  pay  over  and  deliver  said  principal 
sum,  with  its  accumulations,  if  any,  discharged  of  all 
trust,  to  his  children  and  the  issue  of  any  deceased 
child  by  right  of  representation. 

Sixth.   I  give  and  bequeath  all  the  rest,  residue, 
and  remainder  of  my  property,  both  real  and  per- 
sonal, to  my  said  trustees,  to  invest  the  Residue 
same  as  above  directed,  and  to  pay  the  mtrust 
net  income  thereof  semi-annually,  or  as  much  oftener 
as  they  may  deem  best,  to  my  brothers  [name]  and 
[name],  equally,  during  their  joint  lives,  and,  upon 
the  death  of  either,  to  the  survivor  during  his  life. 
Upon  the  death  of  such  survivor  I  direct  my  said 
trustees  to  pay  over  and  deliver  the  entire  Termina- 
principal  sum  formed  by  the  conversion  of  tion 
said  residue  into  proper  investments  with  its  accumu- 
lations, if  any,  discharged  of  all  trust,  to  my  three 
nephews,  C.  D.,  E.  F.,  and  G.  H.,  to  be  equally 
divided  among  them. 

Seventh.  I  declare  that  the  number  of  my  execu- 
tors of  this  will,  and  of  my  trustees  for  every  trust 
created  under  this  will,  shall  remain  two,  Number  of 
so  long  as  there  are  any  duties  to  be  dis- 
charged  by  said  executors  and  trustees; 
and  I  also  declare  that  the  words  "my  executors," 


528  TESTAMENTARY   FORMS  —  APPENDIX   I 

"my  said  executors,"  and  "my  trustees,"  "my  said 
trustees,"  wherever  hereinbefore  occurring,  shall  be 
construed  and  taken  to  mean  the  executors  or  trustees 
for  the  tune  being,  whether  original  or  substituted. 
In  testimony  whereof,  etc. 

[Signature  and  seal.] 

[Attestation  clause  and  witnesses.] 


FORM  VIII 

WILL  OF  AN  UNMARRIED  MAN 

Two  appointed  executors  and  trustees;  and  all  executors  and 
trustees,  whether  original  or  substituted,  exempt  from  giving 
a  surety  or  sureties  upon  their  bonds. 

Power  to  sell  given  to  executors.  Entire  estate  to  be  trans- 
ferred to  trustees  as  soon  as  convenient  and  practicable  after 
the  testator's  decease.  Power  to  invest  and  reinvest  given 
*to  trustees.  Purchasers  from  both  executors  and  trustees  not 
required  to  see  to  the  application  of  the  purchase-money,  and 
those  taking  receipts  exonerated  from  liability. 

An  annuity  of  four  hundred  dollars  given  to  brother  during  life, 
but  not  to  be  alienable  or  liable  to  be  taken  by  his  creditors. 
Trustees  authorized  to  pay  him  only  a  part  of  the  income;  to 
withhold  the  same  entirely,  or  to  apply  the  whole  or  any  part 
thereof  for  the  support  and  maintenance  of  his  wife  and  chil- 
dren. Upon  his  decease,  ten  thousand  dollars,  discharged 
of  all  trust,  to  be  paid  to  the  wife,  and,  in  the  event  of  her 
decease,  to  her  children. 

An  annuity  of  four  hundred  dollars  given  to  a  sister  until  thirty, 
when  five  thousand  dollars  is  to  be  paid  to  her,  discharged 
of  all  trust.  An  annuity  of  two  hundred  dollars  given  to 
her  until  forty,  when  another  five  thousand  dollars  is  to 
be  paid  to  her,  discharged  of  all  trust.  If  she  dies  under 
thirty,  ten  thousand  dollars  to  be  paid  to  her  children;  if 
over  thirty  and  under  forty,  five  thousand  dollars  to  be  paid 
to  them. 


FORMS    OF   WILLS  529 

Trustees  directed  to  apply  four  hundred  dollars  per  annum  for 
the  clothing,  board,  etc.,  of  an  aunt.  Upon  her  death,  ex- 
penses of  last  sickness  and  funeral  expenses  to  be  paid  from 
ten  thousand  dollars  of  the  principal,  and  the  balance  thereof 
to  go  to  educational  institution. 

An  annuity  of  four  hundred  dollars  to  be  paid  to  a  friend.  Trus- 
tees authorized  to  discontinue  its  payment  at  any  tune, 
and  to  pay  to  him  ten  thousand  dollars  from  the  principal; 
if  they  do  not  conclude  so  to  do,  authorized,  upon  the  death 
of  the  beneficiary,  to  pay  ten  thousand  dollars  from  the 
principal  to  his  children. 

Net  income  of  the  residue  given  to  two  brothers  during  their 
joint  lives,  and  upon  the  death  of  either,  to  the  survivor 
during  his  life.  Upon  the  death  of  such  survivor,  principal 
given  to  nephews.  If,  however,  the  trust  is  not  then  entirely 
terminated  as  to  the  other  beneficiaries  and  remainder-men, 
the  income  to  be  added  to  the  principal  until  such  termination. 

Number  of  executors  and  trustees  to  remain  two,  and  the  words 
"my  executors,"  "my  said  executors,"  and  "my  trustees," 
"my  said  trustees,"  to  include  executors  or  trustees  for  the 
time  being,  whether  original  or  substituted. 


THIS  is  the  last  will  of  me,  A.  B.,  of,  etc. 

After  the  payment  of  my  just  debts  and  funeral 
expenses,  I  give,  devise,  and  bequeath  as  follows,  viz. : 

First.  I  constitute  and  appoint  [name]  and  [name] 
the  executors  of,  and  the  trustees  under,  this  my  last 
will,  and  I  exempt  all  executors  of,  and  _. 

~  Executors 

trustees  under,  this  will,  whether  original  andtrus- 

.  -if  •    •  tees'  bonds 

or  substituted,   from  giving  a  surety  or 
sureties  upon  the  bonds  required  of  them  as  said 
executors  and  trustees.     By  substituted  executors 
are  meant,  of  course,  administrators  with  the  will 
annexed. 

I  authorize  my  said  executors  to  sell  both  real  and 
personal  estate  by  private  sale  or  by  public  auction, 
for  the  payment  of  debts  and  for  the  purpose  of  hi- 


530  TESTAMENTARY   FORMS  —  APPENDIX   l' 

vesting  the  trust  estate  hereinafter  created,  and  to 

_          ,      execute  and   deliver  such  deeds  of  con- 
Power  of 

sale  to         veyance  or  other  instruments  of  transfer 

executors  ,  .  . 

as  may  be  necessary  to  pass  a  proper  title 
to  the  same. 

I  direct  my  said  executors,  as  soon  as  is  convenient 
and  practicable  after  my  decease,  to  transfer  my 
fc  entire  property,  real  and  personal,  remain- 

estate  in      ing  after  the  payment  of  my  debts,   to 

themselves  as  trustees,  and  to  manage  the 
same  according  to  the  instructions  hereinafter  con- 
tained and  set  forth.  I  authorize  my  said  trustees 
invest-  from  tune  to  time  to  invest  and  reinvest 

the  principal  of  the  trust  herein  created, 
always  purchasing  sound  securities  which  pay  a  low 
rate  of  interest,  or  other  reliable  property;  and  to  this 
p  ,  end  I  empower  them  to  sell  real  and  per- 

saie  to         sonal  estate,  either  by  public  auction  or  by 
trustees  . 

private  sale,  and  to  execute  such  instru- 
ments as  may  be  necessary  to  transfer  the  title 
thereto.  But  no  purchaser  from  either  my  said 
A  lication  executors  or  trustees  shall  see  to  the  appli- 
of  purchase- cation  of  the  purchase-money,  and  the 

money  . 

receipts  of  my  said  executors  and  trustees 
for  all  moneys  and  effects  paid  or  delivered  to  them 
by  virtue  of  this  will  shall  exonerate  the  persons 
Recei  t  taking  the  same  from  all  liability  to  see  to 

the  application  or  disposition  of  the  money 
or  effects  therein  mentioned. 

Second.   I  direct  my  said  trustees  to  pay  from  the 
income  of  the  principal  of  the  trust  estate  herein 


FORMS   OF  WILLS  531 

created  an  annuity  of  Four  Hundred  Dollars,  in  equal 
quarterly  payments  of  One  Hundred  Dol- 
lars each,  or  oftener,  if  they  shall  deem 
advisable,  to  my  brother  [name],  during  his  natural 
life.  I  direct  that  said  annuity  shall  not  be  alienable 
by  my  said  brother  [name],  either  by  assign-  Alienation, 
ment  or  by  any  other  method,  and  that  the  etc* 
same  shall  not  be  subject  to  be  taken  by  his  creditors 
by  any  legal  process  whatever;  nor  shall  the  same  pass 
in  any  event  to  his  assignee  or  trustee  under  any 
trust  deed  that  may  be  executed  by  him  or  under 
any  insolvent  or  bankrupt  law,  state  or  national.  I 
authorize  my  said  trustees,  in  their  discretion,  to 
pay  only  such  part  of  said  annuity  to  my  Mainte. 
said  brother  [name],  as  my  said  trustees  nance  and 
may  deem  sufficient  for  his  use  and  benefit, 
or  to  entirely  withhold  such  annuity  from  him,  ex- 
pending the  whole  or  any  part  thereof,  as  they  may 
deem  advisable,  for  the  support  and  maintenance  of 
his  present  wife  [name]  and  children,  or,  in  case  of 
her  decease  before  my  said  brother,  for  the  support 
and  maintenance  of  the  children  alone.  If  at  the 
expiration  of  every  year  beginning  with  a  year  from 
the  day  of  my  decease  there  is  in  the  hands  Accumuia- 
of  my  said  trustees  any  of  said  annuity  tion 
which  they  do  not  propose  to  pay  over  to  my  said 
brother,  or  to  expend  for  the  support  and  mainte- 
nance of  his  wife  and  children,  then  I  direct  them  to 
add  the  same  to  the  principal  of  this  trust.  Upon 
the  decease  of  my  said  brother  I  direct  my  said 
trustees  to  pay  over  and  deliver  from  the  principal 


532  TESTAMENTARY   FORMS  — APPENDIX 'I 

of  the  trust  herein  created  Ten  Thousand  Dollars, 
„         .      discharged  of  all  trust,  to  [name],  the  said 

Payment 

on  death  of  present  wife  of  my  said  brother,  and,  if  she 
shall  have  deceased,  then  to  her  children  by 

my  said  brother  living  at  the  time  of  his  decease,  to 

be  equally  divided  among  them. 

Third.   I  direct  my  said  trustees  to  pay  from  the 

income  of  the  principal  of  the  trust  estate  herein 
created  an  annuity  of  Four  Hundred  Dol- 

Annuity 

lars  annually,  or  as  much  oftener  as  they 
may  deem  best,  to  my  sister  [name],  wife  of  [name], 
until  she  arrives  at  the  age  of  thirty  years;  at  which 
time  I  direct  my  said  trustees  to  pay  over  and  deliver 
p  to  her,  from  the  principal  of  the  trust  herein 

from  created,  Five  Thousand  Dollars,  discharged 

of  all  trust.  Then  I  direct  my  said  trustees 
to  pay  her  an  annuity  of  only  Two  Hundred  in- 
stead of  Four  Hundred  Dollars,  annually,  or  as  much 
oftener  as  they  may  deem  best,  until  she  arrives  at 
the  age  of  forty  years;  at  which  time  I  direct  my  said 
trustees  from  the  said  principal  to  pay  over  and  de- 
liver to  her  the  sum  of  Five  Thousand  Dollars,  dis- 
charged of  all  trust.  In  the  event  of  the  death  of 
my  said  sister  under  the  age  of  thirty  years,  I  direct 
my  said  trustees  to  discontinue  the  annuity  of  Four 
Hundred  Dollars  given  to  her  above,  and  to  pay 
over  and  deliver  from  the  said  principal  the  sum  of 
Ten  Thousand  Dollars,  discharged  of  all  trust,  to 
the  children  of  my  said  sister  [name]  living  at  the 
time  of  her  decease,  to  be  equally  divided  among 
them;  and  in  the  event  of  her  decease  after  arriving 


FORMS   OF  WILLS  533 

at  the  age  of  thirty  years  and  before  attaining  the 
age  of  forty  years,  I  direct  my  said  trustees  to  dis- 
continue the  annuity  of  Two  Hundred  Dollars  given 
to  her  above,  and  to  pay  over  and  deliver  from  the 
said  principal  the  sum  of  Five  Thousand  Dollars, 
discharged  of  all  trust,  to  the  children  of  my  said 
sister  [name]  living  at  the  tune  of  her  decease,  to  be 
equally  divided  among  them. 

Fourth.  I  direct  my  said  trustees  to  apply  from 
the  income  of  the  trust  estate  herein  created  Four 
Hundred  Dollars  per  annum  to  or  for  the  ,,  . 

Mainte- 

clothing,  board,  lodging,  maintenance,  and  nance  and 
support,  or  otherwise  for  the  personal  and 
peculiar  benefit  of  my  aunt  [name],  during  her  life, 
at  such  tune  or  times,  hi  such  portions  and  hi  such 
manner  in  all  respects,  as  my  trustees  shall  think 
most  conducive  for  her  comfort  and  convenience. 
Upon  the  decease  of  my  said  aunt  I  direct  my  said 
trustees  to  separate  from  the  principal  of  this  trust 
the  sum  of  Ten  Thousand  Dollars;  and,  Payment 
after  paying  therefrom  the  expenses  of  the  otv™*^*1 
last  sickness  and  the  funeral  expenses  of  my  said 
aunt,  I  direct  them  to  pay  over  and  deliver  the  bal- 
ance, discharged  of  all  trust,  to  the  Trustees  of  the 
Massachusetts  Academy  of  said  Boston,  to  be  ex- 
pended for  the  benefit  of  said  Academy  agreeably  to 
the  provisions  of  its  charter  and  by-laws. 
Fifth.  I  direct  my  said  trustees  to  pay  from  the 

income  of  the  principal  of  the  trust  estate 

Annuity 

herein  created  an  annuity  of  Four  Hun- 
dred Dollars,  in  equal  quarterly  payments  of  One 


534  TESTAMENTARY   FORMS  — APPENDIX' I 

Hundred  Dollars  each,  or  oftener,  if  they  shall  deem 
advisable,  to  my  friend  [name],  during  his  natural 
life,  or  so  long  as  they  may  deem  advisable,  as  here- 
inafter provided.  I  authorize  my  said  trustees,  in 
Discretion  the  exercise  of  a  reasonable  discretion,  to 
of  trustees  discontinue  the  payment  of  this  annuity 
at  any  tune  during  the  life  of  the  said  [name],  and 
to  pay  and  deliver  to  the  said  [name],  from  the  prin- 
cipal of  the  trust  herein  created,  the  sum  of  Ten 
Thousand  Dollars,  discharged  of  all  trust;  but  if 
they  do  not  deem  it  advisable  to  so  discontinue  the 
annuity  and  to  pay  to  him  the  said  sum  of  Ten 
Thousand  Dollars,  then  I  authorize  my  said  trustees, 
Payment  of  upon  the  death  of  the  said  [name],  to  pay 
principal  oyer  and  Deliver  the  said  sum  of  Ten 
Thousand  Dollars,  discharged  of  all  trust,  to  his 
children  and  the  issue  of  any  deceased  child  by  right 
of  representation. 

Sixth.   I  give  and  bequeath  all  the  rest,  residue, 
and  remainder  of  my  property,  both  real  and  per- 
sonal, to  my  said  trustees,  to  invest  the 
Residue 

same  as  above  directed,  and  to  pay  the 

net  income  thereof  semi-annually,  or  as  much  oftener 
as  they  may  deem  best,  to  my  brothers  [name]  and 
[name],  equally,  during  their  joint  lives,  and  upon 
the  death  of  either  to  the  survivor  during  his  life. 
Upon  the  death  of  such  survivor  I  direct  my  said 
Termina-  trustees  to  pay  over  and  deliver  the  entire 
principal  sum  formed  by  the  conversion  of 
said  residue  into  proper  investments,  with  its  accu- 
mulations, if  any,  discharged  of  all  trust,  to  my  three 


FORMS   OF   WILLS  535 

nephews,  C.  D.,  E.  F.,  and  G.  H.,  to  be  equally 
divided  among  them,  provided  the  trust  created  by 
this  will  has  terminated  as  to  all  the  before-named 
beneficiaries  and  remainder-men.  If  the  trust  has 
not  so  terminated,  I  direct  my  said  trustees  to  add 
the  income  to  the  principal  until  such  terrnination, 
when  I  direct  them  to  divide  the  same,  discharged 
of  all  trust,  among  said  nephews  as  directed  above.1 

Seventh.  I  declare  that  the  number  of  my  execu- 
tors of,  and  of  my  trustees  under,  this  will  shall  re- 
main two,  so  long  as  there  are  any  duties  Number  of 
to  be  discharged  by  said  executors  and  t"18*668 
trustees;  and  I  also  declare  that  the  words  " my  ex- 
ecutors," "my  said  executors,"  and  "my  trustees," 
"my  said  trustees,"  wherever  hereinbefore  occurring, 
shall  be  construed  and  taken  to  mean  the  executors 
or  trustees  for  the  time  being,  whether  original  or 
substituted. 

In  testimony  whereof,  etc. 

[Signature  and  seal.] 

[Attestation  clause  and  witnesses.] 

1  It  has  been  observed  on  page  521  that  a  trust  somewhat  similar 
to  the  above  may  be  terminated  by  the  distribution  of  a  certain 
portion  of  the  principal,  upon  the  death  of  each  beneficiary  or  at 
some  specified  time;  but  it  will  be  noticed  that  under  the  above 
form  the  continuance  of  the  payment  of  the  residue  of  the  income 
to  some  one,  or  its  addition  to  the  principal,  is  necessary,  provided 
the  survivor  of  the  beneficiaries  named  hi  article  "  sixth "  should 
decease  before  the  termination  of  the  trust  as  to  all  the  before- 
named  beneficiaries  and  remainder-men. 


536  TESTAMENTARY   FORMS  —  APPENDIX   I 

FORM  IX 

WILL  OF  A  MARRIED  MAN 

Two  appointed  executors  and  trustees  with  full  power  to  sell. 
Purchasers  not  required  to  see  to  the  application  of  the 
purchase-money. 

Entire  estate  given  to  trustees  to  pay  the  net  income  to  the 
testator's  wife,  she  bringing  up  the  children  to  their  satis- 
faction. If  she  fails  so  to  do,  they  are  authorized  to  apply  a 
part  of  the  income  for  that  purpose. 

Upon  death  of  wife  before  youngest  child  attains  twenty-one, 
trustees  directed  to  apply  part  of  income  for  education,  etc., 
of  minor  children,  and  to  add  balance  to  principal. 

When  such  youngest  child  attains  twenty-one,  the  wife  having 
deceased,  or  upon  her  decease  after  said  child  attains  twenty- 
one,  the  trust  to  terminate,  and  the  principal  to  be  divided 
among  the  testator's  children. 

The  expressions  "executors,"  "trustees,"  etc.,  to  include  both 
original  and  substituted  executors  and  trustees. 

Know  all  Men  by  these  Presents: 

THAT  I,  A.  B.,  of,  etc.,  being  of  sound  and  dispos- 
ing mind  and  memory,  do  make  this  my  last  will  and 
testament,  revoking  all  wills  by  me  at  any  time  here- 
tofore made. 

After  the  payment  of  my  just  debts  and  funeral 
expenses,  I  declare  that  my  property  shall  be  disposed 
of  as  hereinafter  directed. 

First.  I  constitute  and  appoint  my  friends  [name] 
and  [name]  the  executors  of,  and  the  trustees  under, 
Executors  ^s  my  last  will;  and  I  give  them,  both  as 
and  executors  and  trustees,  full  power  and  au- 

trustees  . 

thonty  to  sell  both  real  and  personal  estate 
by  public  auction  or  by  private  sale,  and  to  convey 


FORMS   OF  WILLS  537 

the  same  by  such  deeds  or  other  instruments  as  may 
be   necessary  to   transfer   the  legal   title   powers  of 
thereto.    But  no  purchaser,  either  from  my   sale'  etc* 
said  executors  or  trustees,  shall  be  required  to  see 
to  the  application  of  the  purchase-money. 

Second.   I  give,  devise,  and  bequeath  all  my  prop- 
erty and  estate,  both  real  and  personal,  wherever 
the  same  may  be  situated,  to  my  before-  .  Entire 
named  trustees  in  trust,  to  be  held  and    estate 
managed  by  them  in  accordance  with  the 
instructions  hereinafter  contained  and  set  forth,  to 
wit: 

I  direct  my  said  trustees  to  pay  the  entire  net 
income  thereof  to  my  wife  [name]  during  her  life,  she 
maintaining,  educating,  and  bringing  up,  income  to 
to  the  satisfaction  of  my  said  trustees,  my  wife>  etc' 
son  or  sons  for  the  time  being  under  the  age  of  twenty- 
one  years,  and  my  daughter  or  daughters  for  the 
time  being  under  that  age  not  having  been  married. 
But  if  she  shall  fail  so  to  do,  I  authorize  my  said 
trustees,  in  their  discretion,  to  retain  and  Discretion 
appropriate  for  that  purpose  so  much  of  oftrustees 
the  said  net  income  as  they  shall  think  expedient, 
and  to  pay  the  residue  to  my  said  wife  for  her  own 
support  and  maintenance. 

Third.   If  my  said  wife  shall  die  before  my  young- 
est child,  whether  a  son,  or  a  daughter  not  having 
been  married,  shall  have  reached  the  age    Mainte_ 
of  twenty-one  years,  then  I  direct  my  said   nance  and 
trustees  to  apply  so  much  of  said  net  in- 
come as  may,  in  their  judgment,  be  necessary  for 


538  TESTAMENTARY   FORMS  —  APPENDIX   I 

the  maintenance,  education,  and  support  of  my  said 
children  under  the  age  of  twenty-one  years,  whether 
a  son  or  sons,  or  a  daughter  or  daughters  not  having 
been  married,  and  to  add  the  balance  of  said  income 
to  the  principal  fund.  When  such  youngest  child, 
whether  a  son,  or  a  daughter  not  having  been  mar- 
Termina-  ried,  shall  attain  said  age  of  twenty-one 
years,  then  I  direct  that  this  trust  shall 
terminate;  and  I  authorize  my  said  trustees  to  divide 
the  entire  principal  fund,  with  its  accumulations, 
if  any,  discharged  of  all  trust,  equally  among  all 
my  children  then  living  (that  is,  at  the  time  of 
my  said  wife's  decease),  the  issue  of  any  de- 
ceased child  to  take  the  parent's  share  by  right 
of  representation. 

Fourth.  Upon  the  death  oi  my  said  wife  after  the 
said  youngest  child,  whether  a  son,  or  a  daughter 
Termina-  not  having  been  married,  shall  have  at- 
tained the  said  age  of  twenty-one  years, 
then  I  likewise  direct  my  said  trustees  to  terminate 
this  trust  by  dividing  the  entire  principal  fund,  with 
its  accumulations,  if  any,  discharged  of  all  trust, 
equally  among  all  my  children  then  living  (that  is, 
at  the  tune  of  my  said  wife's  decease),  the  issue  of 
any  deceased  child  to  take  the  parent's  share  by 
right  of  representation. 

Fifth.  I  declare  that  the  expressions,  " executors," 
Meanin  "my  executors,"  "my  said  executors,"  and 
ofexecu-  "trustees,"  "my  trustees,"  "my  said 

tors,  etc.  .  ...... 

trustees,    wherever  occurring  in  this  will, 
shall  be  construed  to  mean,  the  executors  or  execu- 


FORMS   OF  WILLS  539 

tor  and  the  trustees  or  trustee  for  the  time  being, 
whether  original  or  substituted. 
In  testimony  whereof,  etc. 

[Signature  and  seal.] 

[Attestation  clause  and  witnesses.] 


FORM  X 

WILL  OF  AN  UNMARRIED  MAN 

Executor  appointed,  released  from  giving  sureties  on  his  bond, 

and  given  full  power  to  sell  real  and  personal  estate. 
All  property  remaining  after  payment  of  debts  and  charges  of 

administration  given  to  three  trustees  to  expend  the  income 

for  charitable  purposes. 

Power  to  invest  and  reinvest  given  to  trustees. 
Provision  made  as  to  perpetual  succession  of  trustees,  and  all 

substituted  trustees  to  have  all  the  powers  and  authorities 

of  the  original  trustees. 

Know  all  Men  by  these  Presents: 

THAT  I,  A.  B.,  of,  etc.,  do  make  my  last  will  and 
testament,  revoking  all  wills  by  me  at  any  tune  here- 
tofore made: 

First.   I  constitute  and  appoint  [name]  the  execu- 
tor of  this  will,  and  request  that  he  be  exempt  from 
giving  a  surety  or  sureties  upon  his  official    Executor, 
bond.    I  give  my  said  executor  or  his  sue-    etc* 
cessor  full  power  and  authority  to  sell  both  real  and 
personal   estate  by  public  auction  or   by  private 
sale,  and  to  convey  the  same  by  proper  deeds  of 
conveyance. 


540  TESTAMENTARY   FORMS  —  APPENDIX   I 

Second.  All  my  property,  both  real  and  personal, 

remaining  after  the  payment  of  my  debts  and  the 

charges  of  administration,  I  give,  devise, 

Xl/GuTC 

estate  and  bequeath  to  [three  names]  and  their 
successors  in  trust,  to  hold  and  invest  the 
same,  and  dispose  of  the  income  thereof  as  herein- 
after directed. 

Third.  I  give  my  said  trustees  power  to  invest 
and  reinvest  the  principal  of  this  trust  from  tune 
Power  of  to  time  as  they  may  think  fit,  always, 
however,  seeking  investments  which  yield 
a  small  income,  and  are  consequently  safe  and 
reliable. 

Fourth.  I  direct  my  said  trustees  to  appropriate 
the  net  income  of  the  principal  of  the  trust  created 
income  for  by  article  " second"  of  this  will  to  the  fur- 
chanties  therance  and  promotion  of  the  cause  of 
piety  and  good  morals,  the  general  relief  of  the  poor, 
either  through  public  institutions  or  through  alms- 
giving by  the  agency  of  individuals,  or  for  the 
education  of  deserving  youths;  and  I  give  my  said 
trustees  full  power  and  discretion  to  appropriate 
and  expend  said  income  in  such  manner  as  hi  their 
judgment  may  best  promote  the  objects  before 
mentioned. 

Fifth.  If  my  said  trustees,  or  any  of  them,  or  any 
future  trustees  or  trustee  hereof,  shall  die,  either 
Succession  before  or  after  their  or  his  acceptance  of 
of  trustees  tke  tmst  herein  created,  go  to  reside 
abroad,  desire  to  be  discharged  from,  renounce, 
decline,  or  become  incapable  or  unfit  to  act  in  the 


FORMS   OF  WILLS  541 

said  trust,  then,  and  in  every  or  any  such  cases,  and 
so  often  as  the  same  shall  happen,  I  direct  the  trustees 
or  trustee  for  the  time  being  competent  to  act 
(whether  desirous  of  being  discharged  or  not),  or,  if 
there  shall  not  be  any  trustee,  the  Judge  of  Probate 
for  the  County  of,  etc.,  in  his  individual  and  not  in 
his  official  capacity,  by  any  writing  or  writings  under 
their  or  his  hands  or  hand,  attested  by  two  or  more 
witnesses,  to  nominate  and  substitute  any  person  or 
persons  to  be  trustee  or  trustees  hereof  in  the  place 
of  the  trustee  or  trustees  so  dying,  going  to  reside 
abroad,  desiring  to  be  discharged,  renouncing,  de- 
clining, or  becoming  incapable  or  unfit  to  act  as 
aforesaid.  Every  new  trustee  to  be  from  tune  to 
tune  appointed  as  aforesaid  shall  thenceforth  be  com- 
petent in  all  things  to  act  hi  the  execution  of  the 
trusts  hereof  as  fully  and  effectually,  and  with  all 
the  same  powers  and  authorities  to  all  purposes 
whatsoever,  as  if  he  had  hereby  been  originally  ap- 
pointed a  trustee  in  the  place  of  the  trustee  to  whom 
he  shall,  whether  immediately  or  otherwise,  succeed. 
And  the  expression  "my  said  trustees,"  wherever 
occurring  hi  this  will,  shall  be  construed  to  mean 
the  trustees  or  trustee  for  the  time  being,  whether 
original  or  substituted. 
In  testimony  whereof,  etc. 

[Signature  and  seal.] 

[Attestation  clause  and  witnesses.] 


542  TESTAMENTARY   FORMS  —  APPENDIX   I 

FORM  XI 

WILL  OF  A  MARRIED  MAN 

Wearing  apparel,  furniture,  etc.,  given  to  wife. 

Residue  of  estate  given  to  wife  and  six  children,  wife  to  have  one- 
third  or  three-ninths  and  each  child  one-ninth. 

Provisions  for  wife  in  lieu  of  dower. 

Residence  to  be  allotted  to  wife  as  a  part  of  her  one-third  share. 

A  friend  named  executor,  released  from  giving  sureties  on  bond 
and  given  full  power  of  sale. 

THIS  is  the  last  will  of  me,  A.  B.,  of,  etc. 

After  the  payment  of  my  just  debts  and  funeral 
expenses,  I  give,  devise,  and  bequeath  as  follows: 

First.  I  give  and  bequeath  my  wearing  apparel, 
watches,  jewelry,  other  personal  effects,  and  all  the 
w  .  furniture  in  the  house  now  occupied  by 

apparel,       my  family  and  myself,  to  my  wife,  C.  D., 
etc 

to  be  hers  absolutely.     I  mean  by  the 

word  " furniture"  just  used  above,  all  my  household 

articles,  useful  and  ornamental,  tapestries,  pictures, 

engravings,  paintings,  portraits,  plated  and 

Furniture 

silver  ware,  books,  bnc-a-brac,  statuary, 
and  all  works  of  art,  domestic  stores,  wines,  liquors, 
linen,  bedding,  and  all  other  portable  articles  in  and 
about  my  residence  at  the  time  of  my  decease. 

Second.  All  the  rest,  residue  and  remainder  of 
my  estate  of  every  nature  and  description,  both  real 
Residue  in  and  personal,  of  which  I  shall  die  seized 
and  possessed  and  to  which  I  may  be  en- 
titled at  the  time  of  my  decease  and  wherever  the 
same  may  be  situated,  I  direct  shall  be  divided  into 


FORMS   OF  WILLS  543 

nine  equal  shares  or  parts.  I  give,  devise  and 
bequeath  three  of  said  shares  or  parts,  being  three- 
ninths,  or  one-third  of  said  rest,  residue  and  remain- 
der, to  my  said  wife,  C.  D.  and  to  her  heirs  and 
assigns  forever.  I  give,  devise  and  bequeath  to  each 
of  my  six  children,  E.  F.,  G.  H.,  I.  J.,  K.  L.,  M.  N. 
and  0.  P.,  one  of  said  shares  or  parts,  or  one-ninth 
of  said  rest,  residue  and  remainder,  to  have  and  to 
hold  to  them  and  their  respective  heirs  and  assigns 
forever. 

The  above  provisions  for  my  said  wife  C.  D.  are 
in  lieu  of  dower  and  of  the  right  of  dower  and  all 
other  right,  title  or  interest,  statutory  or   in  lieu  of 
otherwise,  that  she  would  have  in  and  to    dower 
my  estate,  if  I  had  died  intestate,  or  that  she  would 
have  in  and  to  my  estate  if  she  were  not  barred  by 
the  exclusion  herein  stated. 

I  direct  that  the  said  house  or  residence  now  occu- 
pied by  myself  and  family  shall  be  allotted  to  my 
said  wife  C.  D.,  as  a  part  of  the  above-men- 


tioned  three-ninths  or  one-third  share  of    of  house 

to  wife 

my  estate,  at  a  valuation  of  thirty  thousand 
dollars,  and  to  this  end  I  give  and  devise  said  house 
or  residence  and  the  land  upon  which  the  same  is 
situated  to  the  said  C.  D.  and  her  heirs  and  assigns 
forever.  The  following  is  a  more  particular  descrip- 
tion of  the  premises  [description]. 

Third.   I  appoint  my  friend  S.  T.  the  executor  of 
this  will.     I  release  him  from  giving  a 

~         "          Executor 

surety  or  sureties  upon  his  official  bond, 

and  I  give  him  as  such  executor  full  power  and 


544  TESTAMENTARY   FORMS  —  APPENDIX   I 

authority  to  sell  real  or  personal  estate  by  public  or 
Power  of      private  sale  and  convey  the  same  by  proper 

deeds  of  conveyance  and  transfer. 
In  testimony  whereof,  etc. 

[Signature  and  seal.] 

[Attestation  clause  and  three  witnesses.] 


FORM  XII 

WILL  OF  A  WIDOWER 

Residence,  furniture,  etc.,  given  to  only  child,  a  son,  absolutely. 

Residue  given  in  trust  to  trust  company  to  pay  the  net  income 
to  the  son  for  five  years,  when  one-tenth  part  of  the  principal, 
discharged  of  all  trust,  to  be  paid  to  him.  The  net  income  of 
the  remaining  principal  to  be  paid  to  him  for  another  five 
years,  when  one-ninth  part  of  the  principal,  discharged  of 
all  trust,  to  be  paid  to  him.  The  net  income  of  the  remaining 
principal  to  be  paid  to  him  for  ten  years,  when  the  trust  to 
terminate  and  the  entire  principal  to  be  paid  to  him.  In 
the  event  of  his  death  before  twenty  years  have  elapsed  from 
the  time  of  the  testator's  decease,  the  trust  to  terminate 
and  the  entire  principal  to  be  paid  to  any  person  or  corpora- 
tion whom  the  son  may  name  and  appoint  by  will,  and,  in 
default  of  such  appointment  to  his  issue,  and,  hi  default  of 
such  issue,  to  certain  institutions. 

The  trust  company  appointed  executor,  released  from  giving 
sureties  on  bonds,  given  power  of  sale  both  as  executor  and 
trustee  and  cautioned  as  to  investments. 

Statement  as  to  letter  addressed  to  son  to  be  found  with  the  will. 

Know  all  Men  by  these  Presents: 

THAT  I,  A.  B.,  of,  etc.,  widower,  do  make  this 
my  last  will  and  testament  revoking  all  other  wills 
by  me  at  any  time  heretofore  made. 


FORMS   OP  WILLS  545 

After  the  payment  of  my  just  debts  and  funeral 
expenses  I  give,  devise  and  bequeath  as  follows: 

First.  [Gives  to  his  only  child,  C.  D.  Residence 
his  residence,  furniture,  silver  and  other  furniture, 

etc. 

personal  effects  to  be  his  absolutely.] 

Second.  All  the  rest,  residue  and  remainder  of  my 
property,  both  real  and  personal,  of  which  I  shall 
die  seized  and  possessed  and  to  which  I  ., 

f  Residue  in 

shall  be  entitled  at  the  time  of  my  decease,  trust  for 
and  wherever  the  same  may  be  situated, 
I  give,  devise  and  bequeath  to  the  Stability  Trust 
Company  of,  etc.,  hi  trust  to  collect  all  rents,  issues, 
interest  and  other  income,  and,  after  paying  all  ex- 
penses properly  chargeable  to  income,  including  a 
reasonable  sum  for  its  own  services,  to  pay  over  the 
balance  or  net  income,  in  quarterly  payments  or 
oftener  if  it  deems  best,  to  my  said  son,  C.  D.,  for  a 
period  of  five  years  from  the  day  of  my  death;  to 
then  pay  over  and  transfer  to  said  C.  D.  _ 

Tennina- 

one-tenth  part  of  the  principal  of  the  trust,  tion  by  in- 
j-  v  /  *  11  *  ±u  stalments 

discharged  of  all  trust;  to  pay  over  the  net 

income  of  the  principal  of  the  trust  remaining,  in 
quarterly  payments  or  oftener  if  it  deems  best,  to 
said  C.  D.  for  another  five  years  or  ten  years  from 
the  day  of  my  death;  to  then  pay  over  and  transfer 
to  said  C.  D.  one-ninth  part  of  the  principal  of  the 
trust,  discharged  of  all  trust;  to  pay  over  the  net 
income  of  the  principal  of  the  trust  then  remaining, 
in  quarterly  payments  or  oftener  if  it  deems  best,  to 
said  C.  D.  for  a  period  of  ten  years;  and  then  (twenty 
years  from  the  day  of  my  death)  to  pay  over  and 


546  TESTAMENTARY   FORMS  —  APPENDIX   I 

transfer  the  entire  principal  of  the  trust  remaining, 
discharged  of  all  trust,  to  the  said  C.  D.  to  have  and 
to  hold  to  him  and  to  his  heirs  and  assigns  forever. 

If  my  said  son,  C.  D.,  shall  die  at  any  time  before 
the  above  trust  shall  absolutely  terminate,  that  is, 
Power  of  before  twenty  years  shall  have  elapsed 
appoint-  from  the  day  of  my  decease,  I  order  and 
direct  the  said  trustee  to  pay  over  and 
transfer  the  entire  principal  of  the  trust  then  in  its 
hands  and  possession,  discharged  of  all  trust,  to  any 
person  or  persons,  corporation  or  corporations,  soci- 
ety or  societies,  association  or  associations  that  my 
said  son,  C.  D.,  may  name  and  appoint  in  and  by 
his  last  will  and  testament,  and,  in  default  of  such 
appointment,  to  pay  over  and  transfer  said  entire 
principal,  discharged  of  all  trust,  to  his  issue  living 
at  the  time  of  his  decease,  the  children  of  a  deceased 
child  to  take  the  parent's  share  by  right  of  represen- 
tation, and,  in  default  of  such  issue,  to  pay  over  and 
transfer  said  entire  principal,  discharged  of  all  trust, 
to  the  Old  Ladies'  Home,  the  Old  Man's  Retreat 
and  the  People's  Hospital,  all  of  the  city  of,  etc.,  to 
be  equally  divided  among  them. 

Third.  I  constitute  and  appoint  the  said  Stability 
Trust  Company  the  executor  of  this  will,  release  it 

from  giving  a  surety  or  sureties  upon  its 
Executor  J 

bonds  both  as  executor  and  trustee,  and 
confer  upon  it  both  as  executor  and  trustee  full 
Power  of  power  and  authority  to  sell  both  real  and 

personal  property  by  public  auction  or  by 
private  sale  and  convey  the  same  by  such  instru- 


FORMS   OF   WILLS  547 

ments  or  deeds  as  may  be  necessary  and  proper  to 
give  a  valid  title  thereto;  and  I  caution  said  trustee 
to  seek  only  those  investments  which  yield  a  moder- 
ate rate  of  interest  and  are  consequently  safe  and 
reliable. 

Fourth.   I  have  left  with  this  will  a  letter  hi  a 
sealed  envelope  addressed  to  my  son,  C.  D.,  and  I 
desire  the  same  to  be  delivered  to  him  as   Letter  to 
soon  as  is  convenient  after  my  decease.    son 
Neither  the  letter  nor  its  contents  are  to  be  in  any 
way  regarded  as  a  part  of  this  will. 

In  testimony  whereof,  etc. 

[Signature  and  seal.] 

[Attestation  clause  and  signatures  of  witnesses.] 

LETTER  TO  SON 

To  my  son,  C.  D.: 

I  HAVE  given  you  by  will  my  entire  estate;  resi- 
dence, furniture,  silver  and  other  personal  effects  to 
be  yours  absolutely  and  the  rest  of  my  Letter  to 
property,  which  I  regard  at  the  present  son 
time  to  be  worth  about  five  hundred  thousand  dollars, 
in  trust.  You  are  to  receive  the  net  income  from  the 
trust  estate,  and  the  trust  is  to  terminate  by  instal- 
ments, and  hi  the  event  of  your  death  before  such 
termination,  the  entire  principal,  discharged  of  all 
trust,  is  to  go  as  you  may  appoint  by  will  and,  in 
default  of  such  appointment,  to  your  issue,  if  you 
leave  any,  and,  hi  default  of  issue,  to  certain  chari- 
table institutions. 


548  TESTAMENTARY   FORMS  —  APPENDIX   I 

At  the  end  of  five  years  from  my  decease,  one- 
tenth  of  the  entire  trust  estate  is  to  be  paid  to  you, 
discharged  of  all  trust.  You  will  thus  become  the 
owner  absolutely  of  about  fifty  thousand  dollars. 
You  have  received  a  college  education  and  have  little 
idea  of  the  value  of  money,  as  you  have  never  made 
any.  I  fancy  you  may  be  inclined  to  speculate  hi 
stocks.  My  advice  to  you  is  not  to  do  so;  but  it  is 
probable  that  you  will  not  heed  the  warning  of  one, 
to  whose  prudence,  frugality  and  fifty  years  of  un- 
remitting labor  you  are  indebted  for  your  property. 
It  is  asserted  by  some  that  sales  at  stock  boards 
are  often  washed  and  that  so-called  reputable  bank- 
ing houses  sometimes  bucket  their  deals.  Of  these 
charges  I  know  nothing,  but  I  do  know  that  even  with 
fan*  treatment  from  stock  board,  banker  and  broker, 
the  making  of  money  by  speculation  is  problematical, 
if  not  impossible.  If  you  see  fit  to  speculate  with  the 
fifty  thousand  dollars  above-mentioned,  it  will  all 
go  in  a  very  few  years. 

Possibly  you  may  be  inclined  to  dabble  in  inven- 
tions and  patents  instead  of  speculating  in  stocks. 
My  warning  as  to  this  form  of  venture  is  equally  em- 
phatic. Only  three  men  out  of  a  hundred  are  said 
to  succeed  hi  business  life.  Not  one  invention  out  of 
five  hundred  ever  produces  pecuniary  returns.  It 
is  very  easy  to  imagine  that  a  patented  article  or 
machine  is  capable  of  turning  out  endless  profits, 
but  outside  of  the  intrinsic  value  of  the  article  or 
machine,  there  are  numerous  business  and  other 
conditions  which  must  be  considered  and  which 


FORMS   OF   WILLS  549 

unfortunately    more    often    promote    failure    than 
success. 

At  the  end  of  ten  years  from  my  decease  one-ninth 
of  the  remaining  trust  estate  is  to  be  paid  to  you, 
discharged  of  all  trust.  You  will  for  the  second 
time  become  the  owner  absolutely  of  about  fifty 
thousand  dollars.  You  will  now  very  likely  feel  dis- 
posed to  try  to  make  money  in  legitimate  business; 
but,  as  you  were  not  born  poor  and  have  had  a  college 
education,  you  will  not  succeed  hi  commercial  life. 
Your  business  activities,  however,  like  your  stock 
speculations,  will  bring  great  enlightenment,  will 
lessen  your  assurance,  will  promote  caution  and  will 
beget  some  sadness  and  regret. 

At  the  end  of  twenty  years  from  my  decease  the 
balance  of  the  estate,  amounting  to  about  four  hun- 
dred thousand  dollars,  will  be  paid  over  to  you, 
discharged  of  all  trust.  Fortified  by  your  experiences 
and  by  the  coolness  and  deliberation  which  come  with 
years,  you  will  then  realize  how  hard  it  is  to  earn 
money  and  will  probably  never  again  subject  your 
property  to  the  hazards  of  speculation  and  trade. 
Do  not  regard  the  preceding  remarks  as  severe  and 
unkind.  Believe  me  when  I  say  that  they  are 
prompted  only  by  a  spirit  of  affection.  I  believe 
that  if  you  live  twenty  years  after  my  decease  you 
will  regard  the  provisions  of  my  will  and  the  sugges- 
tions herein  made  as  eminently  wise. 

A.  B. 


550  TESTAMENTARY   FORMS  —  APPENDIX   I 

FORM  XIII 

WILL  OF  A  WIDOWER 

Wearing  apparel,  furniture,  etc.,  given  to  daughter.  Sister  of 
testator  appointed  executrix  and  trustee,  released  from  giving 
sureties  on  her  bonds  and  given  full  powers  of  sale. 

Trustee  cautioned  as  to  investments. 

Duties,  powers,  and  discretions  conferred  upon  trustee  to  extend 
to  successors. 

Residue  of  property  consisting  of  personalty  given  in  trust,  the 
trustee  to  apply  income  for  support  of  daughter,  adding 
unapplied  income  to  principal,  or  to  pay  whole  or  part  of 
income  to  daughter,  adding  any  part  thereof  not  so  paid  over 
to  principal.  If  daughter  marries  before  arriving  at  thirty 
years  of  age,  trustee  to  purchase  for  her  a  house  and  furni- 
ture and  provide  her  with  marriage  portion  from  principal 
of  trust. 

If  daughter  reaches  thirty  years  of  age,  trust  to  terminate  and 
principal  to  be  paid  to  her.  If  she  dies  before  reaching  thirty, 
trust  to  terminate  and  principal  to  be  paid  to  her  issue  and, 
if  she  leave  none,  then  to  go  as  daughter  may  appoint  by 
will. 

If  daughter  die  leaving  issue  and  testator's  sister  be  living,  re- 
quest that  she  be  appointed  guardian  of  such  issue. 

Request  that  in  purchasing  house  and  furniture,  if  daughter 
should  marry,  trustee  defer  to  daughter's  wishes. 

Request  as  to  trustee  and  testator's  daughter  having  a  common 
home. 

THIS  is  the  last  will  of  me,  A.  B.,  widower,  of,  etc. 

After  the  payment  of  my  just  debts  and  funeral 
expenses,  I  give,  devise  and  bequeath  as  follows: 

First.  I  have  no  real  estate.  I  give  and  bequeath 
all  my  watches,  jewelry,  wearing  apparel,  other 
Personal  personal  effects,  library  and  furniture  to 
effects,  etc.  my  daughter  and  only  child  C.  D.  to  be 
hers  absolutely. 


FORMS   OF  WILLS  551 

Second.   I  constitute  and  appoint  my  sister  E.  F. 
the  executrix  of,  and  the  trustee  under,  this  will;  and 
I  release  her  from  giving  a  surety  or  sure-  Executrix 
ties  upon  her  official  bonds.    I  confer  upon  and  trustee 
the  said  E.  F.  in  the  capacities  both  as  executrix  and 
trustee  full  power  and  authority  to  sell  both  real  and 
personal  estate,  either  by  public  auction  or    Power  of 
by  private  sale,  and  convey  the  same  by   sale 
such  deeds  or  other  instruments  of  conveyance  as  may 
be  necessary  to  give  a  valid  title.    In  executing  the 
above  power  I  caution  my  said  trustee  to  invest  the 
proceeds  of  any  sales  or  sale  only  in  sound    invest- 
and  reliable  properties,  which  yield  a  low   ments 
rate  of  interest,  rather  than  hi  investments,  which 
pay  a  large  rate  of  interest  and  are  presumably  sub- 
ject to  risk  and  hazard. 

The  discretions  hereinafter  conferred  upon  my  said 
trustee  are  to  be  exercised  by  her  as  fully  as  if  I  were 
alive  and  capable  of  exercising  the  discre-  Discre_ 

tions  myself:  and  all  duties,  powers  and    tjfons, 

'   r  duties  of 

discretions  created  and  provided  for  in  this   trustee, 

will  are  to  extend  to  and  are  to  be  possessed, 
exercised  and  discharged  by  the  trustee  under  this 
will  for  the  tune  being,  whether  the  said  E.  F.  or  her 
successor  or  successors. 

Third.  All  the  rest,  residue  and  remainder  of  my 
property,  which  consists  entirely  of  personalty,  of 
which  I  shall  die  possessed  and  to  which  I   Residue 
may  be  entitled  at  the  time  of  my  decease   m  trusi 
and  wherever  the  same  may  be  situated,  I  give  and 
bequeath  to  my  said  trustee   E.  F.  in  trust,  for  the 


552  TESTAMENTARY   FORMS  —  APPENDIX   I 

following  purposes,  to  wit:  to  collect  and  receive  all 
income  thereof  and  after  paying  therefrom  the  ex- 
penses chargeable  to  income,  including  a  liberal 
compensation  to  herself;  (A)  To  apply  the  whole  or 

Provisions  a  P8^^  °^  ^ne  Balance  or  net  income,  as  she 
as  to  may  deem  best,  for  the  maintenance  and 

support  of  my  said  daughter  C.  D.  and  to 
add  the  unapplied  income,  if  any,  to  the  principal. 
(B)  If  she  deems  it  for  the  best  interests  of  my  eaid 
daughter  not  so  to  apply  the  net  income,  then  to  pay 
over  in  quarterly  payments  the  whole  or  a  part 
thereof,  as  she  may  deem  best,  to  the  said  C.  D.  and 
to  add  any  part  thereof  not  so  paid  over  to  the  prin- 
cipal. (C)  If  my  said  daughter  shall  marry  before 
arriving  at  the  age  of  thirty  years,  to  purchase  from 

Purchase  *ne  Prmcipa^  °f  *ne  trust  estate  a  house 
of  house  for  not  to  exceed  twenty  thousand  dollars  in 
value,  and  furniture,  furnishings,  etc., 
therefor  not  to  exceed  three  thousand  dollars  hi 
value,  the  house  to  be  conveyed  to  my  said  daughter 
C.  D.  in  her  own  name,  and  the  furniture  and  fur- 
nishings, etc.,  to  be  hers  absolutely  and  to  also  pay 
over  and  transfer  to  my  said  daughter  C.  D.  from 
Marriage  the  principal  of  the  trust  estate  securities 
portion  Q£  fae  value  of  thirty  thousand  dollars  as 
a  marriage  portion  to  be  hers  absolutely.  That  there 
may  be  no  misunderstanding  let  me  repeat  that  by 
the  purchase  of  the  house,  furniture,  etc.,  and  the 
payment  of  the  marriage  portion  the  principal  of 
the  trust  estate  will  be  diminished  to  an  amount  not 
to  exceed  fifty-three  thousand  dollars. 


FORMS   OF  WILLS  553 

If  my  said  daughter  C.  D.  shall  arrive  at  the  age 
of  thirty  years,  then  the  trust  above  stated  shall  ter- 
minate, and  I  direct  my  said  trustee  to  Termina- 
convey,  transfer  and  pay  over  the  entire  tionoftrust 
principal  then  constituting  the  trust  estate,  dis- 
charged of  all  trust,  to  my  said  daughter  C.  D.  to 
be  hers  absolutely.  If  my  said  daughter  C.  D. 
shall  die  before  arriving  at  the  age  of  thirty  years, 
then  the  trust  shall  terminate,  and  I  direct  my 
said  trustee  to  convey,  transfer,  and  pay  over  the 
entire  principal  constituting  the  trust  to  the  issue, 
if  any,  then  living  of  the  said  C.  D.  and,  if  she 
leave  no  issue  then  living,  then  to  any  person  or 
persons  she  may  name  and  appoint  in  and  by  her 
last  will  and  testament  duly  executed. 

If,  at  the  time  of  the  death  of  my  said 
daughter  C.  D.  under  the  age  of  thirty  years 

leaving  issue   then    living,   my   said   sis- 
Guardian 

ter  E.   F.  be  then  living,   I  desire  that 

she    be    appointed    the    legal    guardian    of    such 

issue. 

Fourth.  In  the  event  of  the  marriage  of  my  said 
daughter  C.  D.  under  the  age  of  thirty  years  I 
trust  that  my  said  sister  E.  F.,  in  pur-  wishes  of 
chasing  the  house,  furniture,  etc.,  referred  beneficiary 
to  above  will  be  guided  as  far  as  possible  by  the 
wishes  of  the  said  C.  D. 

Fifth.   As  my  said  sister,  daughter  and  myself  have 
long  had  a  common  home,  I  earnestly  hope   common 
that  the  relation  may  continue  after  my   home 
death  as  to  my  said  daughter  and  sister  —  at  least 


554  TESTAMENTARY   FORMS  —  APPENDIX   I 

until  the  marriage  of  my  said  daughter,  if  that  event 
should  occur. 

In  testimony  whereof,  etc. 

[Signature  and  seal.] 

[Attestation  clause  and  signatures  of  witnesses.] 


FORM  XIV 

WILL  OF  WIDOWER 

Executors  and  trustees  appointed,  released  from  giving  sureties 
and  given  powers  of  sale. 

Homestead  given  to  testator's  sister,  during  son's  minority,  then 
to  him  absolutely  at  majority.  On  his  death  before  twenty- 
one  same  to  go  to  testator's  sister,  and,  if  not  living,  then  over. 

Furniture  and  personal  effects  given  to  testator's  sister  during 
son's  minority,  then  to  him  absolutely  at  majority.  On  his 
death  before  twenty-one  same  to  go  to  testator's  sister,  and, 
if  not  li ving,  then  over. 

Pecuniary  legacy  given  to  sister. 

Wishes  expressed  as  to  occupancy  and  use  of  homestead  by 
sister  and  son. 

Residue  in  trust  to  pay  ten  thousand  dollars  per  annum  of  net 
income  to  testator's  sister  for  education  and  support  of  son 
during  minority  and  for  maintenance  of  home.  Trustees  to 
apply  all  or  part  of  said  ten  thousand  dollars  in  case  of  death 
of  sister  before  son's  arriving  at  twenty-one,  adding  what 
remains,  if  anything,  to  the  principal.  Trust  to  terminate  as 
to  one  half  of  the  principal  when  the  son  reaches  twenty-one 
and  the  same  to  be  paid  to  him;  five  thousand  dollars  per 
annum  to  be  paid  to  him  from  net  income  until  he  reaches 
thirty,  when  balance  of  principal,  discharged  of  all  trust, 
to  be  paid  to  him.  If  son  dies  before  twenty-one,  trust  to 
terminate  and  entire  principal  to  be  paid  to  testator's  sister, 
if  living;  if  not  living,  then  over.  If  son  dies  after  twenty- 
one  and  before  arriving  at  thirty,  trust  to  terminate  as  to 
principal  remaining,  and  same  to  be  subject  to  son's  power 


FORMS   OF  WILLS  555 

of  appointment;  in  default  of  which,  to  be  paid  to  testator's 

sister,  if  living;  if  not  living,  then  over. 

Always  to  be  two  trustees  and  provision  made  as  to  new  trustees. 
Executors  authorized  to  compromise  claims  or  refer  them  to 

arbitration. 
Provision  as  to  compensation  of  executors  and  trustees. 

Know  all  Men  by  these  Presents: 

THAT  I,  A.  B.,  of,  etc.,  do  make  this  my  last  will 
and  testament  revoking  all  wills  by  me  at  any  time 
heretofore  made. 

After  the  payment  of  my  just  debts  and  funeral 
expenses  I  give,  devise  and  bequeath  as  follows: 

First.  [C.  D.  and  E.  F.  appointed  executors  and 
trustees,  released  from  giving  sureties  ,, 

'  e  Executors, 

upon  their  bonds  and  given  full  powers    etc.,  ap- 

,       ,     ,  pointed 

of  sale.J 

Second.  The  lot  of  land  with  the  house  thereon 
now  occupied  by  me  in  the  city  of,  etc.,  is  bounded 
and  described  as  follows  [description].  I  Devise  of 
give  and  bequeath  the  same  to  my  sister  homestead 
G.  H.,  to  have  and  to  hold  until  my  son  I.  J.  arrives 
at  the  age  of  twenty-one  years,  when  I  give  and  devise 
the  same  to  him  and  his  heirs  and  assigns  forever. 
If  he  should  die  before  arriving  at  the  age  of  twenty- 
one  years,  then  I  give  and  devise  the  same  to  the 
said  G.  H.  and  to  her  heirs  and  assigns  forever,  and, 
if  she  be  not  living,  then  to  the  Home  for  Destitute 
Children  in  the  city  of,  etc.,  and  its  successors 
absolutely. 

Third.  All  my  furniture  and  personal  effects  now 
in  said  house  I  give  and  bequeath  to  the  said  G.  H. 
to  use  and  enjoy  the  same  until  my  said  son  arrives 


556  TESTAMENTARY   FORMS  —  APPENDIX   I 

at  the  age  of  twenty-one  years,  when  I  give  and 
Furniture  bequeath  the  same  to  him  to  be  his  ab- 
personai  solutely.  If  he  should  die  before  arriving 

effects,  etc.  , 

at  the  age  of  twenty-one  years,  I  give  the 
same  to  the  said  G.  H.,  and,  if  she  should  not  be 
living,  then  to  the  Home  for  Destitute  Children  in 
the  city  of,  etc. 

Fourth.  I  give  to  the  said  G.  H.  the  sum  of  One 
Pecuniary  Hundred  Thousand  Dollars  to  be  hers 
legacy  absolutely. 

Fifth.  It  is  my  wish  that  the  said  G.  H.  shall  live 
in  my  present  home  at  least  until  my  said  son  attains 
Wishes  as  the  age  of  twenty-one  years  and  shall  take 
the  care  of  and  exercise  the  supervision  over 
him  which  a  parent  would  take  and  exercise.  I  do 
not  appoint  her  his  guardian,  as,  since  the  death  of 
his  mother,  she  has  shown  all  the  love  and  solicitude 
of  a  parent  and  he  has  constantly  deferred  to  her 
wishes.  I  urge  him  to  confide  in  her  and  to  be  guided 
by  her  judgment. 

Sixth.  All  the  rest,  residue  and  remainder  of  my 
estate,  both  real  and  personal  and  wherever  situated, 
Residue  of  which  I  shall  die  seized  and  possessed 
and  to  which  I  may  be  entitled  at  the  time 
of  my  decease,  I  give,  devise  and  bequeath  to  the 
afore-mentioned  trustees  C.  D.  and  E.  F.  in  trust 
to  collect  the  rents,  issues,  profits  and  income  thereof 
and,  after  paying  therefrom  all  the  proper  and 
legitimate  expenses  incident  to  the  management  of 
trust  estates,  including  then'  own  compensation 
hereinafter  referred  to,  to  dispose  of  the  balance  or 


FORMS   OF  WILLS  557 

net  income  as  follows:  To  pay  over  ten  thousand 
dollars  per  annum  in  equal  quarterly  payments  to 
the  said  G.  H.  during  the  minority  of  the  said  I.  J., 
for  the  education  and  support  of  the  said  For  educa- 
I.  J.  and  the  maintenance  of  the  mutual  Sainte? 
home,  the  said  G.  H.  merely  to  receipt  for  nance  of  son 
said  money  and  to  be  in  no  event  held  answerable 
for  the  expenditure  thereof,  except  that,  in  case  of 
her  death  or  disability,  the  said  trustees  will  apply 
all  or  so  much  of  said  ten  thousand  dollars  annually 
as  they  may  deem  best  for  the  education  and  support 
of  the  said  I.  J.,  and  for  the  maintenance  of  said  home 
until  he  arrives  at  the  age  of  twenty-one  years,  adding 
all  that  remains  annually  of  said  net  income  to  the 
principal  of  said  trust  to  become  a  part  thereof;  to 
pay  over  to  said  I.  J.,  after  he  attains  the  age  of 
twenty-one  years,  one-half  of  the  entire  principal  of 
said  trust,  discharged  of  all  trust,  to  be  Termina- 
his  absolutely;  to  then  pay  over  to  him  tru"t°after 
from  the  net  income  of  the  remainder  of  twenty-one 
the  estate  held  in  trust  five  thousand  dollars  per 
annum  hi  equal  quarterly  payments  (adding  all  that 
remains  annually  of  said  net  income  to  the  principal 
to  become  a  part  thereof)  until  he  reaches  the  age 
of  thirty  years,  when  the  trust  is  to  terminate  and 
they  will  pay  over  and  transfer  to  him  the  entire 
principal  remaining,  discharged  of  all  trust,  to  be 
his  absolutely. 

In  the  event  of  the  death  of  I.  J.  before  arriving 
at  the  age  of  twenty-one  years,  I  will  and  direct 
that  the  above  trust  shall  terminate  and  that  the 


558  TESTAMENTARY   FORMS  —  APPENDIX   I 

entire  principal,  discharged  of  all  trust,  shall  be 
Before  paid  to  the  said  G.  H.,  to  be  hers  abso- 

twenty-one    lutejy.    an(^  jf  she  be  not  living>  then  to 

the  Home  for  Destitute  Children  in  the  city  of,  etc., 
and  its  successors  absolutely. 

In  the  event  of  the  death  of  the  said  I.  J.  after 
arriving  at  the  age  of  twenty-one  years  and  before 
Before  arriving  at  the  age  of  thirty  years,  I  will 
thirty  and  direct  that  the  trust  shall  terminate 

as  to  the  principal  then  remaining  in  the  hands  and 
possession  of  the  trustees  and  that  the  same,  dis- 
charged of  all  trust,  shall  go  to  any  person  or  persons 
the  said  I.  J.  may  name  and  appoint  in  and  by  his 
_  ,  last  will  and  testament,  to  be  theirs  ab- 

Power  of 

appoint-  solutely,  and,  hi  default  of  such  appoint- 
ment, to  G.  H.  to  be  hers  absolutely,  and, 
if  she  be  not  living,  to  the  Home  for  Destitute 
Children  in  the  city  of,  etc.,  and  its  successors 
absolutely. 

I  direct  that  there  shall  always  be  two  trustees 
of  the  above  trust,  and  in  the  event  of  the  death 
Number  of  °^  an^  trustee,  of  his  resignation  or  dis- 
andnew  qualification  for  any  cause,  a  successor 
shall  be  duly  appointed  by  the  probate 
court,  who  shall  have  all  and  singular  the  same 
powers  and  discretions  and  shall  be  subject  to  all 
and  singular  the  same  duties  and  responsibilities  as 
those  conferred  and  imposed  upon  the  original 
trustees. 

Seventh.  I  authorize  and  empower  my  said  execu- 
tors to  settle  by  compromise  any  disputed  debt 


FORMS   OF  WILLS  559 

owing  by  me  or  to  me  at  the  time  of  my  decease, 
paying  cash  in  full  settlement  in  the  case    compro- 
of  my  own  debts  and,  in  the  case  of  debts   nuse 
due  my  estate,  accepting  real  or  personal  security  if 
they  deem  advisable  and  allowing  such  time  for 
payment  as  they  may  deem  reasonable;  and  also  to 
settle  by  reference  to  arbitration  all  such  disputed 
debts  owing  either  by  or  to  me,  and  I  give 

17  .  Arbitration 

to  and  confer  upon  said  executors  absolute 
discretion  to  act  in  the  premises  without  liability  for 
any  loss  occasioned  by  said  compromises,   settle- 
ments or  arbitrations. 

Eighth.  As  my  executors  may  be  required  to  do 
more  work  than  is  customary  for  executors  to  perform 
in  most  cases,  I  direct  that  they  shall  each 


be  entitled  to  receive  as  compensation  for   sation  of 

executors 

their  services  two  and  one-half  per  cent,    and 
of  the  appraised  valuation  of  the  personal 
estate;  and  each,  as  compensation  for  his  services  as 
trustee,  shall  be  entitled  to  three  per  cent,  of  the 
income  collected  by  them. 
In  testimony  whereof,  etc. 

[Signature  and  seal.] 

[Attestation  clause  and  signature  of  witnesses^] 


560     TESTAMENTAKY  FORMS  —  APPENDIX  I 

FORM  XV 

WILL  OF  A  MARRIED  MAN 

Three  named  as  executors,  released  from  giving  sureties  and 
given  full  power  of  sale. 

Homestead,  furniture,  etc.,  given  to  wife.  Residue  given  to 
wife  and  three  sons,  one  son  receiving  less  than  his  brothers. 

Executors  to  keep  estate  open  for  ten  years  after  testator's 
decease  and  authorized  to  borrow  money. 

Certain  sums  to  be  paid  to  wife  and  sons  for  ten  years  after  tes- 
tator's decease,  when  the  estate  is  to  be  paid  over  to  them; 
and  distribution  in  kind  authorized. 

If  son  who  receives  less  than  his  brothers  disputes  the  probate 
of  the  will,  he  is  to  forfeit  legacy  and  the  same  to  go  to  his 
brothers. 

Number  of  executors  always  to  be  three,  and,  in  case  of  vacancy, 
successor  to  be  appointed,  who  shall  have  all  the  powers  of 
an  original  executor. 

Concurrence  of  two  executors  required. 

Executor  may  authorize  co-executor  or  co-executors  to  act  in 
his  place. 

Executors  to  employ  attorneys,  clerks,  etc.,  and  make  disburse- 
ments therefor  and  for  office  rent,  etc. 

Suggestion  that  executors  keep  a  record  of  proceedings. 

Compensation  of  executors. 

THIS  is  the  last  will  of  me,  A.  B.,  of,  etc. 

After  the  payment  of  my  just  debts  and  funeral 
expenses  I  give,  devise  and  bequeath  as  follows: 

First.   [C.  D.,  E.  F.,  and  G.  H.,  named  as  execu- 
Executors     tors,    released   from   giving   sureties   and 

given  full  power  of  sale.] 

stead,  fur-        Second.     [Homestead,  wearing  apparel, 
mture,  etc.   f  umiture,  etc.,  given  to  wife,  I.  J.,  absolutely.] 

Third.   All  the  rest,  residue  and  remainder  of  my 
property,  both  real  and  personal,  of  which  I  shall  die 


FORMS   OF  WILLS  561 

seized  and  possessed  and  to  which  I  may  be  entitled 
at  the  time  of  my  decease  and  wherever    . 

Residue 

the  same  may  be  situated,  I  give,  devise 
and  bequeath  to  my  said  wife  I.  J.  and  my  three 
sons  K.  L.,  M.  N.,  and  0.  P.,  to  have  and  to  hold  to 
them  and  their  heirs  and  assigns  forever,  but  in  the 
following  proportions.  I  give,  devise  and  bequeath 
to  my  said  wife  I.  J.  one- third  or  four- twelfths,  to 
each  of  my  said  sons,  K.  L.  and  M.  N.  three-twelfths 
and  to  my  said  son,  O.  P.  two-twelfths  of  said  rest, 
residue  and  remainder,  but  their  possession  of  the 
same  is  not  to  be  immediate,  as  will  hereinafter 
appear.  The  condition  of  my  estate  is  such  that  I 
deem  it  advisable  for  my  executors  to  £ 
keep  it  open  and  unsettled  for  a  period  of  be  kept 
ten  years  after  my  decease.  I  direct  them 
not  to  hastily  settle  my  estate,  but  to  exercise  a 
reasonable  discretion  in  bringing  my  business  affairs 
to  a  termination,  and  hi  liquidating  and  discharging 
all  debts  and  obligations  pertaining  thereto.  In 
this  way  unnecessary  loss  will  be  avoided  and  my 
assets  will  be  preserved.  I  do  not  think  that  it  will 
be  necessary  for  my  executors  to  borrow  money,  but, 
if  in  their  judgment  they  deem  it  expedient  so  to  do, 
then  I  authorize  them  to  borrow  not  exceeding  thirty 
thousand  dollars  and  pledge  any  of  the  Borrowing 
sound  assets  of  my  estate  as  security  for  : 
the  loan  or  loans.  The  money  so  borrowed  is  to  be 
used  only  to  liquidate  pressing  demands. 

My  wife  will  of  course  apply  to  the  Probate  Court 
for  the  allowance  which  the  law  provides  for  widows. 


562  TESTAMENTARY   FORMS  —  APPENDIX   I 

In  addition  thereto  I  direct  my  executors  to  pay  to- 

Allowance  her  four  thousand  dollars  per  annum  and 
to  wife  to  pay  to  my  gaid  gons  K  L  and  M  N 

each  three  thousand  dollars  and  to  my  said  son  0.  P. 
two  thousand  dollars  per  annum,  all  of  such  payments 
to  be  made  semi-annually  until  the  end  of  said  ten 
Distribu-  years;  and  at  the  end  thereof  my  entire 
end  of  ten  estate  then  in  the  hands  of  my  executors  is 
years  ^o  j^  pajd  by  them  to  my  wife  and  three 

sons  hi  the  proportions  indicated  above,  to  be  theirs 
absolutely.    In  thus  paying  over  the  property  to  my 
said  wife  and  three  sons,  I  declare  and  direct  that 
payment,  transfer,  and  delivery  in  kind  of 

In  kind 

any  bonds,  stocks,  or  other  securities  and 
property  shall  be  a  sufficient  discharge  of  the  duties 
of  my  executors  and  an  absolute  protection  to  them. 

Fourth.  I  have  ample  reasons  for  making  a  less 
liberal  provision  in  this  will  for  my  son  0.  P.  than 
Disputing  for  my  other  children;  and  I  now  declare 
^  that  if  the  said  O.  P.  shall  in  any  way 

oppose  or  contest  hi  any  court  or  tribunal  the  probate 
and  validity  of  this  will  or  shall  question  my  motive 
in  making  the  same,  then  the  said  O.  P.  shall  forfeit 
all  his  right,  title  and  interest  hi  and  to  the  portion 
of  my  estate  herein  bequeathed  and  devised  to  him 
and  the  same  shall  go  to  his  two  brothers,  K.  L.  and 
M.  N.,  to  be  equally  divided  between  them. 

Fifth.  I  declare  that  the  number  of  executors  of 
Number  of  this  will  shall  always  be  three,  and  that 
executors  ag  goon  ag  a  vacancv  occurs  from  what- 
ever cause  a  successor  shall  be  appointed  by  the  Pro- 


FORMS   OF   WILLS  563 

bate  Court.  I  trust  that  a  person  approved  by  the 
acting  executors  may  be  so  appointed.  All  successors 
shall  have  all  the  powers  and  authority  of  original 
executors. 

In  the  transaction  of  all  business  the  con-  Majority  of 
currence  of  two  executors  shall  be  required.  executors 

Any  one  of  said  executors  may,  by  power  of  at- 
torney in  writing  duly  executed  and  acknowledged, 
authorize    either    co-executor   or   his   co-  Powerof 
executors  to  act  hi  his  stead  and  place  and  attorney 
execute  in  his  name  any  papers,  instruments,  and 
documents  coming  within  the  scope  of  his  duties 
and  powers  as  an  executor. 

I  authorize  and  empower  my  said  executors  to 
employ  such  attorneys,   clerks  and  agents  in  the 
transaction  of  the  business  of  my  estate  E    lo  . 
as  they  may  deem  necessary,  and  make  ment  of 
such  disbursements  therefor,  and  for  office 
rent,  stationery,  etc.,  as  are  reasonable  and  proper. 

I  suggest  to  my  executors,  as  their  labors  will 
extend  over  a  period  of  ten  years,  that  they  keep 
an  accurate  record  of  all  their  transac-  Record 

tions.    I  recommend  that  after  every  meet-  of  transac- 
tions 
ing  they  write  out  in  a  record  book  an 

accurate  statement  of  all  agreements,  proposals, 
undertakings,  etc.,  and  affix  then-  signatures  thereto. 
In  this  way  there  will  be  a  continuous  story  of  all 
then1  doings;  and  misunderstandings  and  disagree- 
ments may  be  avoided. 

Inasmuch  as  the  management  of  my  affairs  is  to 
extend  over  a  period  of  ten  years,  and  much  tune 


564  TESTAMENTARY   FORMS  —  APPENDIX   I 

and  attention  must  be  devoted  to  the  administra- 
Compen-      tion  of  my  estate,  I  declare  that  it  is  my 
wish  that  my  executors  be  well  paid  for 
their  services  and  that  the  Judge  of  Probate  will 
allow  them  liberal  compensation. 
In  testimony  whereof,  etc. 

[Signature  and  seal.] 

[Attestation  clause,  signatures  of  witnesses.] 


FORM  XVI 

WILL  OF  WIDOWER 

Trust  Company  appointed  executor  and  trustee  with  full  power 
of  sale. 

Residence,  furniture,  wearing  apparel,  etc.,  given  to  daughter. 

Rest,  residue  and  remainder  to  be  divided  into  eleven  equal 
shares. 

Two  shares  given  in  trust  to  pay  net  income  to  daughter  for 
life,  and,  on  her  death,  to  be  paid  to  children,  etc.,  as  she  may 
appoint  by  will,  and,  in  default  of  such  appointment,  then 
to  children  and  the  issue  of  any  deceased  child.  If  child  or 
issue  of  a  deceased  child  is  under-  twenty-one,  its  interest  to 
be  held  in  trust  until  majority  and  income  to  be  paid  to 
guardian. 

Three  shares  given  in  trust  to  pay  net  income  to  another  daughter 
for  life,  and,  on  her  death,  principal  to  be  paid  to  children 
and  the  issue  of  a  deceased  child,  and,  if  no  children  or  issue, 
then  to  daughter's  sister  and  brothers  and  issue  of  any  one 
deceased. 

Three  shares  given  in  trust  to  pay  net  income  to  son  for  life, 
and,  on  his  death,  principal  to  be  paid  as  he  may  appoint 
by  will;  but,  if  his  own  son  be  then  living,  to  pay  net  income 
to  such  son  until  he  reaches  forty  and  then  entire  principal 
to  be  paid  to  him.  If  son's  son  dies  after  his  father  and 
before  reaching  forty,  principal  to  go  as  he  may  appoint 


FORMS   OF  WILLS  565 

by  will  and,  in  default  thereof,  according  to  the  statutes 

providing  for  the  distribution  of  intestate  estates. 
Three  shares  given  in  trust  to  pay  the  net  income  to  another  son 

for  life,  and,  on  his  death,  principal  to  be  paid  to  children 

and  issue  of  deceased  children  per  capita. 
All  trusts  declared  to  be  separate  and  distinct  and  separate 

accounts  to  be  kept  thereof. 
Equitable  interests  of  daughters  as  beneficiaries  declared  to  be 

for  their  sole  and  separate  use. 
Trustee  authorized  in  its  discretion  to  add  a  part  of  income  of 

each  trust  to  principal. 
Reason  stated  for  giving  first-named  daughter  two  instead  of 

three  shares  in  trust,  that  residence,  furniture,  etc.,  given  to 

her  outright. 

Know  all  Men  by  these  Presents: 

THAT  I,  A.  B.,  widower,  do  make  this  last  will 
and  testament  revoking  all  wills  by  me  at  any  time 
heretofore  made. 

After  the  payment  of  my  just  debts  and  funeral 
expenses  I  give,  devise  and  bequeath  as  follows: 

First.    [Equity  Trust  Co.,  of,  etc.,  ap-  Executor, 
pointed  executor   and  trustee  and  given 


full  powers  of  sale.] 

Second.  [Residence,  furniture,  wearing  Residence) 
apparel,  etc.,  given  to  daughter,  C.  D.,  to  ®*c£a*fvhe£r 
be  hers  absolutely.] 

Third.   All  the  rest,  residue  and  remainder  of  my 
property,  of  which  I  shall  die  seized  and  possessed 
and  to  which  I  may  be  entitled  at  the  time  Residue 
of   my    decease    and   wherever   situated, 
whether  acquired  before  or  after  the  execution  of 
this  will,  including  all  lapsed  devises  and  legacies 
and  all    property  over  which  at    the  tune  of  my 
decease  I  shall  have  any  power  of  testamentary  dis- 


566  TESTAMENTARY   FORMS  —  APPENDIX   I 

position,  I  give  and  bequeath  in  trust  to  my  above- 
named  trustee,  to  hold,  manage  and  dispose  of  ac- 
cording to  the  directions  hereinafter  given.  I  direct 
my  said  trustee  to  divide  said  rest,  residue  and  re- 
Division  mainder,  which  consists  entirely  of  per- 
mto  shares  sona]  estate,  into  eleven  equal  shares  or 
parts,  and  hi  making  such  division  its  judgment  is 
not  to  be  questioned  by  any  of  the  legatees  or  bene- 
ficiaries under  this  will. 

Fourth.  I  give  two  of  said  shares  or  parts  to  said 
trustee  in  trust  to  pay  over  the  net  income  thereof 
For  to  my  said  daughter,  C.  D.,  in  equal  semi- 

daughter  annuai  payments  for  and  during  the  period 
of  her  natural  life,  and,  upon  her  death,  to  pay  over 
the  principal  of  the  trust,  discharged  of  all  trust,  to 
her  children  and  the  issue  of  any  deceased  child  in 
such  proportions  as  she  may  direct  and  appoint  hi 
and  by  her  last  will  and  testament  duly  executed; 
and,  in  default  of  such  appointment,  to  pay  over  to 
and  divide  the  same,  discharged  of  all  trust,  among 
her  children  living  at  the  tune  of  her  decease  and  the 
issue  then  living  of  any  child  of  hers  who  may  have 
deceased,  such  issue  to  take  the  parent's  share  per 
stirpes  and  not  per  capita.  If  any  child  of  my  said 
daughter  or  the  issue  of  any  child  is,  when  he  or  she 
becomes  entitled  to  any  share  of  the  principal  of  the 
trust  as  above  provided,  under  twenty-one  years  of 
age,  then  I  direct  my  said  trustee  to  hold  his  or  her 
share  in  trust,  paying  over  the  net  income  semi- 
annually  or  oftener  to  the  guardian  or  guardians  of 
such  child  or  issue,  and  paying  over  the  principal, 


FORMS   OF   WILLS  567 

discharged  of  all  trust,  to  such  child  or  issue,  upon 
reaching  his  or  her  majority. 

Fifth.  I  give  three  of  said  shares  or  parts  of  said 
rest,  residue  and  remainder  to  said  trustee,  in  trust, 
to  pay  over  the  net  income  thereof  to  my  For  another 
daughter  E.  F.  in  payments  semi-annually  daushter 
and  as  nearly  equal  as  possible  for  and  during  the 
term  of  her  natural  life,  and  upon  her  death,  to  pay 
over  the  principal  of  the  trust,  discharged  of  all 
trust,  to  her  children  then  living  and  the  issue  then 
living  of  any  deceased  child,  such  issue  to  take  the 
parent's  share  by  right  of  representation  or  per  stirpes 
and  not  per  capita;  and,  if  my  said  daughter  shall 
have  no  children  or  the  issue  of  a  deceased  child 
living  at  the  time  of  her  decease,  then  to  such  of  my 
sons  G.  H.  and  I.  Jv  and  my  daughter  C.  D.,  as  may 
then  be  living  and  to  the  issue  then  living  of  a  de- 
ceased son  or  daughter,  such  issue  to  take  the  parent's 
share  by  right  of  representation  per  stirpes  and  not 
per  capita. 

Sixth.  I  give  three  of  said  shares  or  parts  of  said 
rest,  residue  and  remainder  to  said  trustee  in  trust 
to  pay  over  the  net  income  thereof  to  my  _ 

r   "*  "    For  son 

son  G.  H.  hi  quarterly  payments  during 
the  term  of  his  natural  life,  and,  upon  his  death  to 
pay  over,  if  his  son  K.  L.  be  not  then  living,  the  prin- 
cipal of  the  trust,  discharged  of  all  trust,  to  such 
person  or  persons  as  he  may  by  his  last  will  and 
testament,  duly  executed,  in  writing  designate  and 
appoint;  but  if  his  son  K.  L.  be  then  living,  to  pay 
over  the  net  income  of  the  trust  estate  to  the  said 


568  TESTAMENTARY   FORMS  —  APPENDIX   I 

K.  L.  until  he  arrives  at  the  age  of  forty  years  and 
then  to  pay  over  to  him  the  entire  principal  of  the 
trust,  discharged  of  all  trust,  to  be  his  absolutely. 
In  the  event  of  the  death  of  the  said  K.  L.  after  the 
death  of  his  father  and  before  he  arrives  at  the  age 
of  forty  years  I  direct  that  the  above  trust  estate 
held  for  him  shall  terminate  and  that  the  principal 
thereof,  discharged  of  all  trust,  shall  go  to  any  person 
or  persons  he  may  name  and  appoint  in  his  last  will 
and  testament  and,  in  default  of  such  appointment, 
to  the  person  or  persons  who  would  be  entitled 
thereto  under  the  statutes  providing  for  the  distri- 
bution of  personal  property  in  the  case  of  intestacy, 
provided  the  trust  estate  were  the  absolute  property 
of  the  said  K.  L. 

Seventh.  I  give  three  of  said  shares  or  parts  of 
said  rest,  residue  and  remainder  to  said  trustee  in 
For  an-  trust  to  pay  over  the  net  income  thereof 
other  son  j.Q  mv  gon  j  j  -n  semi_annua]  payments, 

during  the  term  of  his  natural  life,  and,  upon  his 
death,  to  pay  over  the  principal  of  the  trust,  dis- 
charged of  all  trust,  to  his  children  then  living  and  to 
the  issue  then  living  of  any  deceased  child  to  be 
equally  divided  among  them,  not  per  stirpes  but  per 
capita. 

Eighth.  Although  my  intention  as  to  the  above 
trusts  is  apparent  from  the  language  used  in  creating 
Trusts  to  them,  yet  that  there  may  be  no  doubt  or 
be  separate  uncertainty  upon  the  matter,  I  now  declare 
that  said  trusts  are  all  separate  and  distinct,  that 
each  is  to  be  evidenced  by  a  letter  of  trust  from  the 


FORMS   OF  WILLS  569 

probate  court  and  that  the  accounts  of  each  kept 
by  the  trustee  are  to  be  separate  from  those  of  any 
other. 

Ninth.  I  hereby  declare  that  the  equitable  interest 
of  my  daughters  C.  D.  and  E.  F.,  as  beneficiaries  in 
the  trusts  above  created,  is  for  their  sole  , 

Separate 

and  separate  use,  independent  of  any  right   estate  of 
or  control  of  then*  husbands;  and  that  their 
individual  receipts  shall  be  a  sufficient  discharge  and 
protection  of  the  trustee  without  their  husbands 
signing  the  same  or  assenting  thereto. 

Tenth.  I  authorize  my  said  trustee  in  its  discre- 
tion to  add  not  more  than  one-quarter  of  the  annual 

net  income  of  any  one  of  the  above  trusts 

Accumu- 

to  the  principal  thereof,  and  the  amount   lationof 
so  added  shall  become  as  much  a  part  of 
the  principal  as  if  originally  a  part  thereof. 

Eleventh.  My  reason  for  giving  in  trust  for  my 
daughter  C.  D.  two  instead  of  three  shares  of  the 

rest,  residue  and  remainder  is  due  to  the    „ 

Reason  tor 

fact  that  by  the  second  article  of  this  will   bequest  to 
I  have  given  her  my  residence,  furniture 
and  wearing  apparel  outright,  and  have  in  this  way 
made  what  I  believe  to  be  an  equitable  distribution 
of  my  estate. 

In  testimony  whereof,  etc. 

[Signature.] 

[Attestation  clause  and  signatures  of  witnesses.] 


570  TESTAMENTARY   FORMS  —  APPENDIX   I 

FORM  XVII 

WILL  OF  A  MARRIED  MAN 

Provision  made  as  to  monument  and  care  of  burial  lot. 

Two  named  executors,  released  from  giving  sureties  and  given 
power  of  sale. 

Two  named  trustees  and  released  from  giving  sureties.  Always 
to  be  two  trustees  and  vacancy  to  be  immediately  filled.  Trus- 
tees given  power  to  sell,  lease,  partition,  etc. ;  authorized  to 
erect  buildings,  insure  the  same  and  rebuild  in  case  of 
fire,  appoint  agents  or  attorneys,  and  vote  at  meetings  of 
corporations. 

Provision  made  as  to  liability  of  executors  and  trustees. 

Residence,  furniture,  etc.,  given  to  wife. 

One  half  the  residue  given  in  trust  for  wife  for  twenty  years 
when  trust  to  terminate  and  trustees  to  transfer  to  her  entire 
principal,  discharged  of  all  trust. 

The  other  half  of  residue  given  in  trust  for  daughter  for  twenty 
years,  she  to  receive  income  upon  her  individual  receipt  and 
free  from  interference  of  husband;  at  the  expiration  of  which 
period  trust  to  terminate  and  trustees  to  transfer  to  her 
entire  principal  discharged  of  all  trust. 

If  wife  die  before  the  expiration  of  twenty  years,  the  trust  to 
terminate  and  principal  to  go  as  she  may  appoint,  and,  in 
default  thereof,  to  the  daughter,  and,  if  she  be  not  living,  then 
to  a  hospital. 

If  daughter  die  before  the  expiration  of  twenty  years,  the  trust 
to  terminate  and  principal  to  go  as  she  may  appoint,  and, 
in  default  thereof,  to  the  mother,  and,  if  she  be  not  living,  to 
a  hospital. 

The  trust  estates  declared  to  be  separate  and  distinct. 

Provisions  for  wife  in  lieu  of  dower,  etc. 

Trustees  authorized  to  take  over  from  executors  securities  of 
the  testator,  though  not  of  the  character  permissible  for 
trustees  to  invest  in,  and  not  to  be  held  accountable  for  loss; 
but  in  case  of  any  sale  the  proceeds  to  be  placed  only  in  cer- 
tain specified  investments. 

Provision  made  as  to  allotting  real  estate  of  the  trust. 

Extra  cash  and  stock  dividends  upon  shares  held  in  trust  to  be 
added  to  capital. 


FORMS   OF  WILLS  571 

Dividends,  interest  and  profits  in  case  of  wasting  investments 

held  by  trust  to  be  regarded  as  income. 
Certain   amounts   stated   as   compensation   of  executors   and 

trustees. 


THIS  is  the  last  will  of  me,  A.  B.,  of,  etc. 

After  the  payment  of  my  just  debts  and  funeral 
expenses  I  give,  devise  and  bequeath  as  follows : 

First.  I  direct  my  executor  to  erect  over  my 
grave  in  the  Redwood  Cemetery,  hi  the  City  of,  etc., 
a  monument  not  to  exceed  in  cost  the  sum 

f  .  .   .   .,  Burial,  etc. 

of  one  thousand  dollars,  and  to  pay  therefor 
from  the  general  funds  of  my  estate;  and  I  also  direct 
him  to  pay  to  the  Trustees,  Proprietors,  or  other 
officers  of  the  said  Cemetery  the  sum  of  two  hundred 
dollars  for  the  perpetual  care  and  repair  of  my 
burial  lot  in  said  Cemetery. 

Second.   I  nominate  and  appoint  C.  D.  and  E.  F. 
the  executors  of  this  will  and  direct  that  they  be 
exempt  from  giving  a  surety  or  sureties    Executors, 
upon  their  official  bonds.     I  give  them   etc' 
and  the  survivor  of  them  full  power  and  authority 
to  sell  both  real  and  personal  estate  by  private  sale 
or  by  public  auction  and  convey  the  same   Power  of 
by  such  deeds  or  other  instruments  of   sale 
conveyance  as  may  be  necessary  to  pass  a  valid 
title. 

I  also  constitute  and  appoint  the  said  C.  D.  and 
E.  F.  the  trustees  under  this  will  of  the  trust  estates 
hereinafter  created,  and  direct  that  they  Number  of 
be  exempt  from  giving  a  surety  or  sureties  trustet 
upon    the   bonds   required   of   them  as   said  trus- 


572  TESTAMENTARY   FORMS  —  APPENDIX   I 

tees.  I  direct  that  there  shall  always  be  two 
trustees  under  this  will  and  all  the  powers  and  dis- 
cretions vested  herein  in  said  C.  D.  and  E.  F.  are 
equally  given  to  and  conferred  upon  all  succeeding 

and  substituted  trustees.  In  the  event  of  a 
Successors 

vacancy  in  the  office  of  trustee,  I  desire 
that  a  suitable  successor  be  immediately  appointed 
by  the  Probate  Court. 

Third.  I  hereby  bestow  upon  my  said  trustees 
and  their  successors  full  power  and  authority  in 
Power  to  their  discretion  to  sell,  lease,  partition  and 
partithm,6'  exchange  real  estate  and  to  sell  and  ex- 
etCt  change  personal  property  comprised  in  and 

belonging  to  the  trust  estates,  whether  said  real  and 
personal  estate  were  original  or  subsequent  invest- 
ments, and  no  purchaser  shall  be  required  to  see  to 
the  application  of  the  purchase  money.  Such  sales 
may  be  by  auction  or  on  private  terms,  for  cash  or 
on  credit.  Such  leases  may  be  for  any  time  not  ex- 
ceeding ten  years  for  any  one  lease  and  may  contain 
such  reasonable  conditions  as  my  said  trustees  and 
the  lessee  or  lessees  may  agree  upon,  and  if  any  such 
lease  shall  be  in  force  at  the  tune  of  the  termination 
of  the  trusts  herein  created,  it  shall  bind  those  who 
are  entitled  to  the  estate  in  remainder. 

I  authorize  my  said  trustees  and  their  successors 

to  erect  buildings  upon  my  real  estate,  if  they  deem 

it  advisable  so  to  do,  and  I  caution  them 

Buildings 

to  keep  all  the  buildings,  whether  erected 

Insurance  ' 

by  them  or  taken  over  from  my  estate, 
well  insured. 


FORMS   OF  WILLS  573 

In  case  any  of  the  buildings  upon  any  of  the  real 
estate  held  under  the  trusts  herein  created  are  dam- 
aged or  destroyed  by  fire  or  by  any  other 
cause,  then  I  authorize  my  said  trustees 
in  their  discretion  to  repair  or  rebuild  the  same, 
paying  therefor  from  the  insurance  money, 

.  Rebuilding 

and,    ii    insufficient,    using    in    addition 

thereto   any  other  personal  property  or  funds  of 

the  principal  of  the  trust  estates. 

I  hereby  authorize  my  said  trustees  and  their 
successors  to  appoint  from  time  to  time  any  agent 
or  attorney  to  execute  and  deliver  any  Agents  or 
deeds,  transfers,  documents  or  papers,  or   attomeys 
perform  any  ministerial  acts  pertaining  to  the  trust 
estates  and  to  the  administration  thereof,  including 
authority  to  vote  by  ballot  or  otherwise   voting  at 
at  any  meeting  of  any  corporation  in  which   meetings 
the  trust  estates  may  be  interested  as  a  stockholder 
or  otherwise. 

Fourth.   None  of  my  executors  and  trustees  shall 
be    held    responsible    for    any    property    received 
by  another  nor  for  any  wrongdoing,  de-   Liability  of 
falcation  or  miscarriage  of  another,  but  JStnu? 
each    only   for    his    own    wilful    default.    tees 
And  no  executor  or  trustee  shall  be  held  accountable 
for  any  loss  occasioned  to  the  estates  hi  his  hands, 
if  he  has  acted  in  good  faith. 

Fifth.   I  give  and  devise  to  my  wife  G.  H.  and 

to    her    heirs    and    assigns    forever    the   . 

.      Residence 

residence  which  we  now  occupy  which  is 
bounded  and  described  as  follows  [description].    I 


574  TESTAMENTARY   FORMS  —  APPENDIX   I 

also  give  and  bequeath  to  my  said  wife  all  my 
Furniture,  household  furniture,  personal  effects  and 
etc'  wearing  apparel  to  be  hers  absolutely. 

All  the  rest,  residue  and  remainder  of  my  prop- 
erty, both  real  and  personal,  of  which  I  shall  die 
One  half  seized  and  possessed  and  to  which  I  may 

f  •  .  ** 

in  t^st1"  be  entitled  at  the  tune  of  my  decease  and 
for  wife  wherever  the  same  may  be  situated,  I 
direct  and  declare  shall  be  divided  into  two  equal 
shares  or  portions.  I  give,  bequeath  and  devise  one 
of  said  shares  or  one  half  of  said  rent,  residue  and 
remainder  to  my  said  trustees  to  hold  the  same  in 
trust,  collect  and  receive  all  rents,  issues,  profit 
and  income  thereof,  and  after  deducting  therefrom 
all  necessary  expenses  properly  chargeable  to  income, 
to  pay  over  the  balance  of  said  rents,  issues,  profits 
and  income  every  three  months  or  oftener  if  they 
deem  best,  to  my  said  wife  G.  H.  during  the  period 
of  twenty  years  after  my  decease,  at  the  expiration 
Tennina-  of  which  period  the  trust  shall  terminate, 
and  my  said  trustees  will  then  pay  over 
and  transfer  the  entire  principal  of  the  trust,  dis- 
charged of  all  trust,  to  my  said  wife  G.  H.,  the  real 
estate  to  be  hers  in  fee  simple  and  the  personalty 
to  be  hers  absolutely. 

I  give,  devise  and  bequeath  a  second  of  said  shares 
or  the  other  half  of  said  rest,  residue  and  remainder 
One  half  of  to  my  said  trustees  to  hold  the  same  hi 
trusMor11  trust,  to  collect  and  receive  all  rents, 
daughter  issues,  profits  and  income  thereof,  and  after 
deducting  therefrom  all  necessary  expenses  properly 


FORMS   OF   WILLS  575 

chargeable  to  income,  to  pay  over  the  balance  of  said 
rents,  issues,  profits  and  income  every  three  months 
or  oftener,  if  they  deem  best,  to  my  daughter  I.  J., 
upon  her  own  individual  receipt  and  free  from  the 
interference  of  her  husband  or  any  other  person 
during  the  period  of  twenty  years  after  my  decease, 
at  the  expiration  of  which  period  the  trust  is  to 
terminate  and  my  said  trustees  will  Termina- 
then  pay  over  and  transfer  the  entire  tlon 
principal  of  the  trust,  discharged  of  all  trust,  to 
my  said  daughter  I.  J.,  the  real  estate  to  be 
hers  in  fee  simple  and  the  personalty  to  be  hers 
absolutely. 

If  my  said  wife  G.  H.  shall  die  before  the  expira- 
tion of  the  period  of  twenty  years  after  my  decease, 
then  I  direct  that  the  above  trust  held  for  Death  of 
her  benefit  shall  terminate,  and  the  entire  twenty6  ° 
principal,  discharged  of  all  trust,  shall  go  years 
to  such  person  or  persons  as  she  may  name  and  ap- 
point in  and  by  her  last  will  duly  executed  and,  in 
default  of  such  appointment,  to  my  said  daughter 
I.  J.,  and,  if  she  be  not  living,  then  to  the  Wedgewood 
Hospital  of,  etc. 

If  my  said  daughter  I.  J.  shall  die  before  the  expira- 
tion of  the  period  of  twenty  years  after  my  decease, 
then  I  direct  that  the  above  trust  held  Death0f 
for  her  benefit   shall   terminate   and   the  daughter 

before 

entire  principal,  discharged  of  all  trust,  twenty 

i     n  i  t.      years 

shall  go  to  such  person  or  persons  as  she 

may  name  and  appoint  in  and  by  her  last  will  duly 

executed,  and,  in  default  of  such  appointment,  to  my 


576  TESTAMENTARY   FORMS  —  APPENDIX   I 

said  wife,  G.  H.,  and,  if  she  be  not  living,  then  to  the 
Wedgewood  Hospital  of,  etc. 

I  now  emphasize  what  is  fully  apparent  that  the 
Separate  *wo  *rus*  estates  created  above  are  sepa- 

trust  rate  and  distinct  and  that  the  accounts 

estates 

thereof  are  of  course  to  be  separately  kept. 

Sixth.  The  provisions  in  this  will  for  my  said 
In  lieu  of  wife  G.  H.  are  in  lieu  of  all  right  of  dower, 
dower  thirds,  and  any  other  interest  she  may 
have  in  my  estate,  statutory  or  otherwise. 

Seventh.  I  declare  and  direct  that  my  said  trustees 
and  their  successors  may  take  over  from  my  said 
invest-  executors  any  or  all  bonds,  shares  of  stock 
and  other  securities  belonging  to  me  at 
the  time  of  my  decease,  and  retain  the  same  as  a 
part  of  the  trust  estates,  even  though  such  bonds, 
shares  and  other  securities  may  not  be  of  the  nature 
and  character  permissible  for  trustees  to  invest  in 
by  the  general  rules  of  law  or  by  statutory  provisions; 
and  my  said  trustees  and  their  successors  are  not  to 
be  held  answerable  for  any  loss  or  depreciation  occa- 
sioned by  holding  such  bonds,  shares  or  other  secur- 
ities or  any  other  securities  or  investments  which 
may  form  part  of  the  trust  estates,  provided  they 
act  in  good  faith.  If  in  the  exercise  of  the  power  of 
sale  given  above  my  said  trustees  or  their  successors 
shall  at  any  time  dispose  of  any  or  all  of  the  said 
bonds,  shares  of  stock,  or  other  securities  originally 
belonging  to  me  and  taken  over  and  retained  by 
them  as  part  of  the  trust  estates,  then  I  order  and 
direct  them  to  invest  the  proceeds  only  in  the 


FOKMS   OF  WILLS  577 

following  property  and  securities  —  bonds  of  the 
United  States,  of  the  New  England  States,  Reinvest- 
of  the  Middle  States  and  of  the  States  of  ments 
Ohio,  Indiana,  Illinois,  Iowa,  Michigan  and  Wis- 
consin, productive  real  estate  and  safe  mortgages  of 
productive  real  estate  both  located  in  the  jurisdic- 
tion in  which  this  will  is  proved  and  sound  interest- 
paying  first  mortgage  bonds  of  any  railroad  corpora- 
tion in  the  United  States  which  for  ten  years  before 
investing  therein  have  had  an  uninterrupted  market 
value  of  at  least  par  and  during  that  period  have  not 
defaulted  in  interest. 

Eighth.  Whereas  nearly  one-half  of  the  residuum 
of  my  estate  given  above  hi  trust  consists  of  pro- 
ductive real  estate,  which  I  desire  shall  be 

.  Allotment 

retained  in  the  trust  estates,  now,  therefore,    of  real 
I  authorize  and  direct  my  said  executors  to 
allot  the  same  as  nearly  equally  as  possible  to  the  two 
trust  estates,  to  be  held  for  my  said  wife  and  daughter, 
securing  exact  equality  by  the  payment  of  money  or 
the  transfer  of  personal  property  to  the  one  trust  es- 
tate or  the  other  as  the  case  may  be.   I  authorize  and 
empower  my  said  executors  for  the  purposes  just 
outlined  to  execute  such  deeds  or  other  declarations 
and  documents  as  may  be  necessary  and  proper. 

Ninth.  If  at  any  tune  an  extra  cash  dividend 
shall  be  declared  upon  any  shares  of  stock  of  any 
corporation  held  as  a  part  of  the  principal  Extra  cash 
of  any  trust  under  this  will  and,  in  the  ^^dends 
judgment  of  the  trustees,  said  extra  cash  dividend 
is  so  declared  in  connection  with  or  as  a  part  of  a 


578  TESTAMENTAKY   FORMS  —  APPENDIX   I 

scheme  for  the  issue  of  new  stock  by  the  corporation 
and  in  addition  to  the  stock  already  issued,  the 
extra  cash  dividend  so  declared  shall  be  treated  not 
as  income  but  as  capital  and  shall  be  added  to  the 
principal  of  the  trust  and  shall  become  a  part  thereof. 
stock  If)  instead  of  an  extra  cash  dividend,  the 
dividend  capital  stock  is  increased  by  a  stock  divi- 
dend, such  stock  dividend  shall  also  be  treated  as 
capital  and  shall  be  added  to  the  principal  of  the 
trust  and  shall  become  a  part  thereof.  And,  if  hi 
case  °^  an  mcrease  °f  the  capital  stock, 


«  R-  h    » 

"rights"  shall  be  issued,   such  "rights" 

shall  be  sold  and  the  proceeds  thereof  shall  be  treated 
as  capital  and  shall  be  added  to  the  principal  of  the 
trust  and  shall  become  a  part  thereof. 

Tenth.  That  no  question  may  be  raised  as  to 
whether  dividends,  interest  or  profits  from  property 
Wasting  in-  originally  held  or  that  hereafter  may  be 
held  by  my  trustees  and  then-  successors 
under  these  trusts  shall  be  capitalized  in  part  on  the 
ground  that  said  property  is  what  is  generally  termed 
a  wasting  investment,  I  now  declare  and  direct  that 
no  part  of  said  dividends,  interest  or  profits  shall  be 
capitalized,  but  all  thereof  shall  be  regarded  as  income. 
Nevertheless  I  authorize  and  direct  my  trustees  and 
their  successors  hi  that  capacity  to  add  from  time 
to  time  part  of  the  income  from  whatever  property 
received  to  the  principal  of  the  trusts  as  in  their 
discretion  may  seem  wise,  and  the  income  so  added 
to  the  principal  shall  become  as  much  a  part  of  the 
principal  as  if  originally  a  part  thereof. 


FORMS   OF   WILLS  579 

Eleventh.   Each  of  my  said  executors  shall  receive 
in  full  for  his  services  the  sum  of  ten  thousand 
dollars,    but    only    a   proportionate   part  compen- 
thereof ,  if  he  dies,  resigns  or  becomes  in-    sation  of 

7  executors 

capacitated  before  my  estate  is  entirely   and 
settled.     Each  of  my  trustees  shall  re- 
ceive for  his  services  in  each  trust  the  sum  of  one 
thousand  dollars  per  annum,  and  the  above  amounts 
shall  be  in  full  for  all  the  services  of  said  executors 
and  trustees. 

In  testimony  whereof,  etc. 

[Signature  and  seal.] 

[Attestation  clause  and  names  of  witnesses.] 


FORM  XVIII 

WILL  OF  A  WIDOWER 

Legacies  of  large  amount  given  to  only  children,  two  sons. 

Residue  of  estate  given  to  establish  a  public  charity.  Trustees 
to  purchase  lot  and  erect  thereon  a  library  building  and 
provision  made  for  its  perpetual  support. 

The  same  individuals  appointed  executors  and  trustees,  released 
from  giving  sureties  on  their  bonds  and  given  full  powers  of 
sale.  Trustees  may  hold  sound  securities  belonging  to  tes- 
tator at  tune  of  his  decease.  Suggestions  as  to  new  trustees 
and  to  incorporation  of  the  board  of  trustees. 

Provisions  as  to  disputing  will  and  paying  expenses  of  a  contest 
out  of  the  general  funds. 

Know  all  Men  by  these  Presents: 

THAT  I,  A.  B.,  of,  etc.,  widower,  do  make  this  my 
last  will  and  testament,  hereby  revoking  all  wills 
by  me  at  any  tune  heretofore  made. 


580  TESTAMENTARY   FORMS  —  APPENDIX    I 

After  the  payment  of  my  just  debts  and  funeral 
expenses  I  give,  devise  and  bequeath  as  follows: 

First.  I  have  no  children  but  my  sons  C.  D.  and 
Devise  of  E.  F.  I  give  and  devise  to  my  son  C.  D., 
residence  mv  residence  [description].  I  also  give 
and  bequeath  to  him  my  wearing  apparel  and  all  my 
Furniture,  other  personal  effects  and  all  the  furniture 
etc*  that  may  be  in  and  about  said  residence  at 

the  tune  of  my  decease.  I  value  the  above  devise 

and  bequests  to  C.  D.  at  fifty  thousand 
Legacy 

dollars;  and  I  now  give  and  bequeath  to  him 
a  further  legacy  of  two  hundred  and  fifty  thousand 
dollars. 
Second.   I  give  and  bequeath  to  my  son  E.  F. 

the    sum    of    three    hundred    thousand 
Legacy 

dollars. 

Third.  All  the  rest,  residue  and  remainder  of  my 
property,  both  real  and  personal,  of  which  I  shall 
Residue  to  die  seized  and  possessed  and  to  which  I 
chanty  shall  be  entitled  at  the  time  of  my  decease 
and  wherever  the  same  may  be  situated,  I  give,  devise 
and  bequeath  hi  trust  for  the  establishment  and 
maintenance  of  a  public  charity  as  follows: 

I  estimate  that  said  rest,  residue  and  remainder 
amounts  to  about  one  million  dollars  and  it  is  my 
intention  that  it  shall  not  exceed  that  amount  at  the 
tune  of  my  decease,  as  it  is  my  custom,  from  which 
I  propose  not  to  depart  during  life,  to  dispose  of  my 
entire  annual  income.  I  give,  devise  and  bequeath 
said  rest,  residue  and  remainder  to  the  trustees  here- 
inafter named  and  their  successors  hi  trust  to  use, 


FORMS  OF  WILLS  581 

employ  and  expend  the  same  as  follows:  (a)  with 

four-tenths  of  said  rest,  residue  and  re- 
Library 
mainder  to  purchase  a  lot  of  land  in  the 

city  of,  etc.,  and  erect  thereon  a  library  building 
with  all  the  modern  appointments,  conveniences  and 
equipments:  (6)  with  three-tenths  of  said  rest,  residue 
and  remainder  to  purchase  books  and  stock 

Books,  etc. 

said  building  with  the  same  and  also  pur- 
chase for  the  adornment  of  the  building  such  statu- 
ary, other  works  of  art,  engravings,  etc.,  as  they  may 
deem  best:  (c)  to  invest  three-tenths  of  said  rest, 
residue,  and   remainder  as  a  permanent   Permanent 
fund  and  from  the  net  income  thereof  to    fund 
pay  reasonable  sums  for  insurance,  depreciation,  and 
their  own  charges,  as  trustees,  running  expenses,  such  as 
heating,  lighting,  salaries  of  librarians,  their   Expenses, 
assistants,  janitors  and  other  employees,    etc* 
if  necessary,  taxes  if  the  exemption  should  ever  be 
taken  off  and  taxes  should  be  assessed;  and  to  pur- 
chase periodicals,  newspapers  and  new  books  pub- 
lished from  time  to  tune  to  be  by  the  trustees  selected, 
and  to  add  whatever  may  be  needed  in  the  course 
of  tune  in  the  way  of  furniture,  equipment,  new 
statuary  or  other  works  of  art,   engravings,  pic- 
tures, etc. 

If  in  any  one  year  any  of  said  net  income  remains 
after  the  expenditures  just  provided  for  have  been 
made,  then  I  direct  said  trustees  and  their   Income  to 
successors  to  add  the  same  to  the  prin-   be  added 

to  principal 

cipal  of  the  fund. 
I  suggest  to  my  said  trustees  as  to  the  four-tenths- 


582  TESTAMENTARY   FORMS  —  APPENDIX   I 

of  said  rest,  residue  and  remainder  that  after  they 
Sugges-  have  purchased  the  lot  alluded  to  and  have 
bunding,10  made  their  estimates  for  furniture,  equip- 
etc-  ment,  etc.,  and  have  reserved  a  sum  suffi- 

cient therefor,  they  enter  into  a  contract  for  a 
library  building  which  will  absorb  all  the  funds  re- 
maining for  the  purpose  less  about  twenty  or  twenty- 
five  thousand  dollars  to  be  retained  by  them  to  pro- 
vide for  extras  or  other  eventualities. 

When  the  library  is  completed  it  is  to  be  absolutely 
free  or,  in  other  words,  is  to  be  for  the  use,  benefit 
Library  to  and  advantage  of  the  people,  irrespective 
of  condition,  creed  or  color;  and  no  restric- 
tions of  any  kind  are  to  be  imposed  except  reason- 
able rules  and  regulations  as  to  taking  out  books 
and  the  use  of  reading  rooms. 

I  desire  my  trustees  to  erect  a  substantial  fire- 
proof building  and  to  purchase  books  of  the  better 
,.,  class  such  as  are  found  today  in  the  free 

Library, 

books  and    public  libraries  throughout  the  land;  and 

periodicals  .  .  . 

I  express  a  similar  wish  as  to  periodicals 
and  newspapers. 

I  constitute  and  appoint  my  friends  G.  H.,  I.  J. 
and  K.  L.  all  of,  etc.,  the  executors  of  this  will  and 

I  release  them  from  giving  a  surety  or 
Executors  .  J  . 

sureties  upon  their  official  bonds.  I  give 
said  executors,  the  survivors  or  survivor  of  them, 
full  power  and  authority  to  sell  both  real  and  personal 
Power  of  property  by  public  auction  or  by  private 

sale  and  convey  the  same  by  such  deeds 
or  other  instruments  of  conveyance  as  may  be  suit- 


FORMS   OF   WILLS  583 

able  and  proper;  and  purchasers  are  not  to  be  re- 
quired to  see  to  the  application  of  the  purchase 
money. 

I  appoint  the  said  G.  H.,  I.  J.,  and  K.  L.  the  trus- 
tees under  this  will,  and,  if  bonds  are  required  of 
them  and  their  successors,  then  I  release 
them  and  their  successors  from  giving  a 
surety  or  sureties  thereon.    I  give  said  trustees  and 
their  successors  the  power  and  privilege  to  vary  in- 
vestments at  pleasure,  always  seeking  prop-   power  of 
erty  suitable  for  trustees  to  invest  in;  and    sale 
to  this  end  I  confer  upon  them  unrestricted  authority 
to  sell  both  real  and  personal  property,  by  public 
auction  or  by  private  sale  and  convey  the  same  by 
proper  deeds  of  conveyance;  and  purchasers  are  not 
required  to  see  to  the  application  of  the  purchase 
money. 

I  authorize  my  said  executors  to  transfer  and  set 
over   to   my  said   trustees  or  their  successors  as 
part  or  all  of    the   said   three-tenths  of  Retention 
the  residuum  which  they  are  to  hold  hi   £or'sSin-~ 
trust  as  a  permanent  fund  any  safe   and   vestments 
sound  securities  belonging  to  me  at  the  tune  of 
my  decease  at  the  appraised  valuation;  and  I  direct 
that  my  trustees  and  their  successors  are  not  to  be 
held  answerable  for  any  loss  or  depreciation  that 
may  occur  by  retaining  such  securities  or  by  holding 
any  other  sucurities  purchased  by  them,  provided 
they  exercise   sound   discretion   and   act   in  good 
faith. 

I  condemn  the  method  provided  hi  many  wills  for 


584  TESTAMENTARY   FORMS  —  APPENDIX   I 

trustees  for  public  charities  filling  vacancies  in  their 
New  board  without  resort  to  any  court  or  tri- 

trustees  bunal,  because  I  deem  such  method  directly 
contrary  to  the  principle  which  should  obtain  in  the 
administration  of  trusts  for  charitable  purposes.  I 
desire  the  successors  of  the  original  trustees  to  be 
appointed  in  the  regular  way  by  the  probate  court  or 
other  proper  authority;  and  when  a  vacancy  occurs, 
the  surviving  trustees  will  select  some  man  of  sterling 
character  and  recognized  business  ability,  and  then 
present  his  name  by  petition  to  the  appointing  power, 
with  whom  shall  be  left  the  question  of  selection  or 
rejection. 

In  the  case  of  public  charities  advantages  are 

incorpora-    sometimes  gained  by  the  incorporation  of 

the  trustees.    This  is  a  matter  for  my  own 

trustees  to  consider,  and  I  leave  it  entirely  to  their 

discretion. 

Fourth.  I  have  talked  freely  with  my  two  sons, 
above  named,  about  the  motives  which  have  induced 
Disputing  me  to  make  this  will,  and  I  believe  that 
^  they  will  be  entirely  satisfied  with  its  pro- 

visions. Nevertheless,  I  order,  direct  and  declare 
that  if  either  of  my  said  sons  shall  contest  or  dispute 
the  probate  of  this  will,  or  maintain  before  any  judicial 
body  that  this  is  not  my  last  will,  or  call  in  question 
before  any  tribunal  the  validity  of  any  legacies  given 
and  provisions  made  herein,  then  I  absolutely  revoke 
the  legacy  or  legacies  given  to  said  son,  and  declare 
the  same  void  and  of  no  effect,  and  I  absolutely  de- 
clare that  said  legacy  or  legacies  so  revoked  shall  fall 


FORMS   OF  WILLS  585 

into  the  residuum  of  my  estate  and  constitute  a 
part  thereof. 

I  further  declare  and  direct  that  if  any  attempt  is 
made  to  contest  this  will  in  the  court  of  probate  or 
before  any  other  tribunal  and  proves  un-  Expenses 
successful,  my  executors  shall  pay  all  the  of  contest 
expenses  necessitated  in  resisting  such  attempt  and 
defending  the  will,  including  reasonable  compensa- 
tion to  themselves  hi  addition  to  the  compensation 
to  which  they  are  otherwise  entitled  as  executors. 

In  testimony  whereof,  I  have  hereunto  set  my 
hand  and  seal  this  tenth  day  of  August,  1911. 

[Signature  and  seal.] 

[Attestation  clause  and  witnesses.] 


FORM  XIX 

WILL  OF  A  MARRIED  MAN 

Statement  as  to  debts  for  guidance  of  executors. 

Three  appointed  executors  and  trustees;  not  required  to  give 
sureties  on  bonds  and  given  full  powers  of  sale.  Purchasers 
not  required  to  see  to  the  application  of  the  purchase  money, 
and  all  persons  taking  receipts  exempted  from  liability. 

Duties  of  executors  to  devolve  upon  survivors  or  survivor,  but 
number  of  trustees  always  to  be  three. 

Executors  and  trustees  liable  only  for  their  own  personal  defaults. 

Residence,  furniture,  etc.,  given  to  wife.  Trust  created  for 
benefit  of  wife  and  children.  Trustees  to  pay  all  expenses 
of  residence  from  income  and  the  balance  thereof  to  wife  and 
three  children,  the  trust  to  terminate  on  the  death  of  the  wife 
and  the  principal  to  be  divided  among  the  children,  with  pro- 
visions both  as  to  principal  and  income  in  the  event  of  a  child 
dying  before  the  mother. 


586  TESTAMENTARY   FORMS  —  APPENDIX    I 

No  anticipation  or  assignment  of  income  by  children  or  attach- 
ment thereof  by  creditors.  If  so  anticipated,  assigned  or 
attached,  trustees  to  apply  income  for  support  and  main- 
tenance of  beneficiary. 

Desire  that  residence  be  a  home  for  the  family  and  that  wife 
make  renewals,  etc.,  of  furniture,  etc. 

Trustees  authorized  to  retain  investments  even  if  such  as  trus- 
tees are  not  usually  allowed  to  invest  in;  new  investments  to 
be  in  sound  properties. 

Instructions  to  executors  as  to  settling  the  estate. 

Provisions  for  wife  in  lieu  of  rights. 


THIS  is  the  last  will  of  me,  A.  B.,  of,  etc. 

After  the  payment  of  my  just  debts  and  funeral 
expenses  I  give,  devise  and  bequeath  as  follows: 

First.  I  declare  at  the  outset  for  the  enlightenment 
of  my  executors  that  I  have  no  debts  at  the  present 
Amount  of  time  except  those  of  a  trifling  nature  and 
that,  as  I  have  retired  from  business  and 
make  it  a  rule  not  to  indorse  paper  or  incur  other 
obligations,  it  is  probable  that  at  the  tune  of  my 
decease  my  entire  indebtedness  will  be  limited  to  a 
few  outstanding  bills  for  household  expenses. 

Second.  I  constitute  and  appoint  C.  D.,  E.  F. 
and  G.  H.  the  executors  of  and  the  trustees  under 
Bonds  of  this  will,  and  I  exempt  them  both  as  ex- 
^jCU  °  ecutors  and  trustees  from  giving  a  surety 
trustees  or  sureties  upon  their  official  bonds.  I 
give  them  as  such  executors  and  the  survivors  or 
survivor  of  them  full  power  and  authority  to  sell 
both  real  and  personal  estate  by  public  auction  or 
by  private  sale  and  convey  the  same  by  proper  deeds 
of  conveyance.  I  give  them  as  trustees  and  their 
successors  in  that  capacity  the  authority  to  vary 


FORMS   OF  WILLS  587 

the  investments  of  the  trust  estate,  hereinafter 
created,  from  time  to  time  as  they  may  Powers  of 
see  fit,  and  to  effect  that  end  I  confer  sale 
upon  them  as  such  trustees  and  their  successors  in 
that  capacity  full  power  and  authority  to  dispose  of 
and  sell  both  real  and  personal  estate  by  public 
auction  or  by  private  sale  and  convey  the  same  by 
such  deeds  or  other  instruments  as  may  be  suitable, 
proper  and  sufficient  to  pass  and  convey  a  valid 
title. 

I  direct  and  declare  that  the  receipts  hi  writing  of 
my  executors  and  trustees,  for  the  time  being,  for 
any  money,  moneys  or  property  received  Executors' 
by  them  shall  absolutely  discharge  any  £»»*«!" 
person  or  persons  named  hi  such  receipts  ceiPts 
as  paying  said  money  or  moneys  or  transferring  said 
property  to  said  executors  or  trustees;  that  no  per- 
son or  persons  shall  have  the  right  or  be  under  the 
obligation  to  inquire  into  the  propriety  or  legality 
of  any  sale  of  property  under  this  will  by  my  said 
executors  or  trustees;  that  in  the  event  of  any  sale 
by  said  executors  or  trustees  no  purchaser 


shall  be  required  to  see  to  the  application  of  purchase 

money 
of  the  purchase  money,  and  that  no  tenant 

or  other  person  paying  rent  or  other  money  or  trans- 
ferring property  to  said  executors  and  trustees  shall 
be  answerable  for  the  use,  application  or  disposition 
of  the  same.  It  is  my  will  that  if  one  of  my  execu- 
tors dies  or  resigns,  a  successor  shall  not  Number  of 
be  appointed  in  his  place,  but  the  duties  executors 
of  the  office  shall  devolve  upon  and  be  discharged 


588  TESTAMENTARY   FORMS  —  APPENDIX   I 

by  the  survivors  or  survivor  of  them.  But  it  is  my 
Number  of  will  that  there  shall  always  be  three  trus- 
tees so  long  as  the  trust  continues;  and 
hence  if  one  of  the  trustees  dies,  resigns  or  for  any 
reason  becomes  incapable  of  acting,  a  successor  shall 
be  appointed  by  the  probate  court;  and  I  trust  that 
in  such  case  the  judge  of  that  tribunal  will  favorably 
consider  any  person  recommended  and  indorsed  by 
the  two  acting  trustees. 

I  direct  that  my  said  executors  and  my  said  trus- 
tees and  their  successors  shall  be  liable  for  their 
Liability  own  personal  defaults  and  wrongdoing  and 
tonTand"  no*  eacn  ^or  *^e  other.  I  further  declare 
trustees  that  they  shall  not  be  responsible  for  the 
neglect  or  default  of  any  broker,  banker  or  agent  in 
whose  hands  they  may  have  placed  any  money  or 
securities  of  the  trust  estate;  and  I  further  release 
them  from  all  liability  for  any  loss  which  may  occur 
by  reason  of  the  depreciation  of  any  real  or  personal 
property  in  their  hands  and  possession.  But  I  require 
of  said  executors  and  of  said  trustees  and  their  suc- 
cessors good  faith  hi  all  transactions. 

Third.  [Gives  residence,  wearing  apparel,  furni- 
Residence,  ture,  etc.,  in  residence,  horses,  carriages, 
etc^given  harnesses  and  stable  furnishings,  out-door 
to  wife  implements  and  tools  of  all  kinds  to  wife, 
I.  J.  to  be  hers  absolutely.] 

Fourth.  All  the  rest,  residue  and  remainder  of  my 
property,  real  and  personal,  of  which  I  shall  die 
seized  and  possessed  and  to  which  I  may  be  entitled 
at  the  time  of  my  decease  or  over  which  I  shall 


FORMS   OF   WILLS  589 

then  possess  any  power  of  appointment  and  wher- 
ever the  same  may  be  situated,  I  give,  de-   T     .  , 
vise  and  bequeath  to  the  afore-mentioned   wife  and 

...  .  children 

trustees  and  their  successors  in  trust  to 
manage,  control  and  dispose  of  the  same  as  follows: 
to  collect  and  receive  the  income  thereof  and  after 
paying  therefrom  taxes,  insurance,  amounts  required 
to  make  good  depreciation  of  buildings,  a  sufficient 
sum  for  their  own  compensation  and  all  other  charges 
incident  to  trust  estates  and  properly  payable  from 
income,  to  pay  from  what  remains  or  the  net  income 
all  the  expenses  of  the  house,  stable  and  premises 
devised  above  to  my  said  wife,  including  Household 
all  supplies  for  family  and  domestic  main-  etc!*  pr<>' 
tenance  and  the  maintenance  of  the  stable  vided  for 
and  the  improvement  and  adornment  of  the  grounds, 
including  food  of  all  lands,  hay,  gram,  fertilizers, 
wages  of  servants  and  employees  and  all  other  ex- 
penses naturally  and  properly  incurred  hi  running 
and  maintaining  a  residence,  stable  and  premises; 
to  pay  over  one-half  of  the  balance  of  the  net  income, 
quarterly  or  semi-anmially  as  they  may  decide,  to 
my  wife,  I.  J.,  during  her  life  and  one-sixth  of  the 

said  balance  of  the  net  income,  quarterly  or   . 

7 .  Income 

semi-annually  as  they  may  decide,  to  each 
of  my  three  children,  K.  L.,  M.  N.,  and  0.  P.,  dur- 
ing the  life  of  their  mother;  and  if  any  one  of  the  three 
shall  die  before  his  or  her  mother,  leaving  issue  living 
at  the  time  of  his  or  her  decease,  to  pay  over  said  one- 
sixth  of  the  balance  of  the  net  income  to  such  issue, 
if  over  twenty-one  years  of  age,  and,  if  under  twenty- 


590  TESTAMENTARY   FORMS  —  APPENDIX   I 

one  years  of  age,  to  apply  so  much  of  the  same  as  they 
may  deem  best  to  the  education,  maintenance  and 
support  of  such  issue  during  minority,  adding  what 
remains  to  the  principal  of  the  trust,  and,  if  any  one 
of  the  three  so  dying  shall  leave  no  issue  living  at 
the  tune  of  his  or  her  decease,  then  to  add  said  one- 
sixth  of  the  balance  of  the  net  income  to  the  principal 
of  the  trust;  and  upon  the  death  of  their  said  mother 
Termina-  to  pay  over,  transfer  and  deliver  the  entire 
principal  constituting  the  trust,  discharged 
of  all  trust,  to  the  said  K.  L.,  M.  N.,  and  O.  P.,  to 
be  equally  divided  among  them.  I  further  will  and 
direct  that  if  any  of  the  three  —  the  said  K.  L., 
M.  N.  and  0.  P.  —  shall  die  before  his  or  her  mother 
leaving  issue  living  at  the  tune  of  the  mother's 
death,  such  issue  on  the  termination  of  the  trust  as 
above  provided  shall  take  the  parent's  share  by  right 
of  representation;  but,  if  he  or  she  leave  no  issue 
then  living,  his  or  her  share  shall  go  to  any  person 
or  persons  whom  he  or  she  may  name  and  appoint 
in  and  by  his  or  her  last  will  and  testament  duly 
executed. 

Fifth.  No  beneficiary  under  this  will,  except  my 
said  wife,  shall  have  the  right  and  power  to  alienate, 
NO  antiti-  dispose  of ,  anticipate  or  hi  any  way  in- 
pation,  as-  cumber  or  create  a  charge  upon  the  income 

signment, 

etc.,  of  to  which  he  or  she  is  entitled  under  the 
above  provisions  of  this  will,  and  also  the 
same  shall  not  be  subject  to  attachment,  diversion, 
seizure  or  sequestration  by  any  creditor  of  any  bene- 
ficiary by  any  legal  process  whatever;  and  if  any 


FORMS   OF   WILLS  591 

beneficiary,  except  my  said  wife,  shall  so  alienate, 
dispose  of,  anticipate,  incumber  or  create  a  charge 
upon  the  income  to  which  he  or  she  is  entitled  or  if 
he  or  she  shall  become  a  bankrupt  or  make  any 
assignment  for  the  benefit  of  creditors,  or  if  said  in- 
come shall  be  in  any  way  attached,  diverted,  seized 
or  sequestered,  or  an  attempt  shall  be  made  to  attach, 
divert,  seize  or  sequester  the  same  by  any  legal 
process,  then  my  said  trustees  and  their  successors 
shall  immediately  cease  to  pay  said  income  to  said 
beneficiary  and  shall  thereafter  apply  the  same  for 
his  or  her  support  and  maintenance. 

Sixth.   I  have  made  the  foregoing  provisions  as 
to  the  maintenance  of  my  residence  with  the  desire 
and  in  the  hope  that  my  wife  and  children   Remarks 
will  make  it  a  common  home.    As  I  have   as  to 
given  my  wife  all  the  furniture,  horses, 
carriages,  etc.,  I  trust  that  she  will  make  renewals 
and  provide  for  all  depreciation  of  the  same  out  of 
her  own  resources,  of  which  she  has  ample. 

Seventh.  I  hereby  authorize  and  direct  my  said 
trustees  and  their  successors  to  take  and  retain  in 
their  discretion  any  part  or  all  of  said  invest- 

.j  .,  i        .  ,i        ments  and 

residuary  estate   as  it  may  be   in  at  the   reinvest- 
time  of_my  decease,  even  if  the  properties,    ments 
investments  and  estates  may  be   such  as  trustees 
are  not  usually  allowed  to  invest  in,  without  liability 
or  responsibility  on  the  part  of  said  trustees  and  their 
successors  for  any  loss  resulting  therefrom.    While 
they  are  thus  to  exercise  their  discretion  hi  retaining 
investments  I  urge  them  in  making  new  investments 


592  TESTAMENTARY   FORMS  —  APPENDIX   I 

to  seek  productive  real  estate,  sound  first  mortgages 
of  real  estate,  the  bonds  and  stocks  of  the  best  rail- 
roads, the  bonds  and  stock  of  the  best  industrial 
companies,  and  stock  in  reliable  banks  and  trust 
companies;  but  I  do  not  limit  them  to  investments 
merely  in  the  State  of  my  domicile. 

Eighth.  While,  as  already  intimated,  I  do  not  in- 
tend to  leave  debts  to  any  great  amount,  yet  I  am 
instruc-  aware  of  the  reasonableness  of  the  law  that 
ecutorsand  executors  shall  have  two  years  hi  which 
trustees  ^o  settle  an  estate.  I  am  also  aware  that  a 
cestui  que  trust  or  beneficiary  is  entitled  in  the  juris- 
diction of  my  domicile  to  the  income  of  the  trust  es- 
tate from  the  tune  of  the  testator's  death,  unless 
the  will  otherwise  provides.  My  wife  has  property 
of  her  own;  and  it  is  my  earnest  wish  that  the  judge 
of  probate  will  allot  to  her  from  my  estate  the  most 
liberal  allowance  provided  by  law.  If  these  resources 
—  her  own  and  such  allowance  —  are  not  sufficient 
for  her  maintenance  and  those  of  the  family  during 
the  two  years  succeeding  my  decease,  then  I  trust 
that  my  executors  and  the  survivors  or  survivor  of 
them  will  pay  to  her  and  my  children  such  amounts 
of  income  from  my  estate  as  the  judge  of  probate 
may  direct  and  allow.  The  method  to  be  employed 
by  my  said  executors  in  settling  my  estate  is  as  fol- 
lows: They  will  charge  themselves  on  their  books 
as  executors  with  the  entire  assets  and  property 
which  I  shall  leave  at  the  appraised  valuation  and 
shall  open  no  books  as  trustees  until  two  years  shall 
have  elapsed  from  the  date  of  the  proving  of  this 


FORMS   OF  WILLS  593 

will.  At  the  expiration  of  said  two  years  they  will 
file  their  accounts  as  executors  showing  that  they 
have  credited  themselves  as  executors  with  paying 
over  and  transferring  to  themselves  as  trustees  the 
entire  property  constituting  the  principal  of  the 
trust.  They  shall  then  open  a  set  of  books  as  trustees 
charging  themselves  with  the  entire  principal  re- 
ceived from  themselves  as  executors,  file  their 
accounts  annually,  and  at  the  termination  of  the 
trust  a  final  account  showing  that  they  have  credited 
themselves  with  paying  over  and  transferring  to  the 
remaindermen  the  property  to  which  they  are 
entitled. 

Ninth.   The  provisions  in  this  will  for  my  wife, 
I.  J.,  are  hi  lieu  of  dower,  widow's  rights   Provisions 

-i  i    •  for  wife  in 

or  any  other  claims  upon  my  estate,  stat-    Ueu  Of 


utory  or  otherwise,  which  she  would  have 
had  if  I  had  died  intestate. 

In  testimony  whereof  I  have  hereunto  set  my  hand 
and  seal  this  tenth  day  of  December,  A.  D.  1911. 

[Signature  and  seal.] 

[Attestation  clause  and  witnesses.] 


APPENDIX  II 

PUBLIC    CHARITIES 

ACTS  OF  INCORPORATION 

Be  it  enacted,  etc.,  as  follows: 

SECTION  1.  A.  B.,  C.  D.,  E.  F.,  G.  H.  and  I.  J., 
the  trustees  under  the  will  of  the  late  E.  M.,  of  W., 
and  their  successors  are  hereby  made  a  Trustees 
corporation  at  said  W.  by  the  name  of  Fumfin^' 
Trustees  of  the  M.  Fund,  for  the  purpose  cooperated 
of  holding  hi  trust  and  administering  in  accord- 
ance with  the  directions  of  said  will  and  the  codicil 
thereto,  the  fund  therein  provided  for  the  benefit 
of  the  Unitarian  Society  of  said  W.  and  for  the  es- 
tablishment and  support  of  a  school  hi  said  town, 
with  all  the  powers  and  privileges  requisite  Powers 
for  carrying  into  full  effect  the  provisions  and  duties 
of  said  will  and  codicil  and  all  the  powers,  rights  and 
privileges,  and  subject  to  all  the  duties,  restrictions 
and  liabilities  set  forth  hi  all  general  laws  which 
now  are  or  may  hereafter  be  hi  force  and  applicable 
to  such  corporations,  not  inconsistent  with  the  pro- 
visions of  said  will. 

SECT.  2.   Said  corporation  is  hereby  authorized 
and  empowered  to  take  and  hold  for  the  purpose 

595 


596  TESTAMENTARY   FORMS  —  APPENDIX   II 

therein  set  forth  all  the  estate  bequeathed  in  trust 
Ma  take  ^v  said  will  and  codicil  to  the  trustees 
and  hold  herein  named;  and  may  take  and  hold  any 
other  estate  real  or  personal  which  may 
be  acquired  by  said  corporation  by  gift,  devise, 
purchase  or  otherwise  for  the  same  purposes:  pro- 

^_   .          vided,  however,  that  the  actual  value  of 
Proviso 

the  estate  by  them  held  or  possessed  as 
aforesaid  shall  not  at  any  one  time  exceed  the  amount 
of  five  hundred  thousand  dollars. 

SECT.  3.  Said  corporation  may  permit  the  town 
of  W.  to  use  for  a  public  school  kept  under  the  re- 
School  strictions  and  in  accordance  with  the  pro- 
may  beg  visions  of  said  will  and  codicil  the  school 
a^ubiilf  building  which  the  said  trustees  have 
school  erected  hi  said  W.  and  may  devote  the 
income  under  their  control  for  school  purposes  to 
the  support  hi  part  or  in  whole  of  such  school. 

SECT.  4.  After  the  organization  of  the  corpora- 
tion created  by  this  act,  the  trustees  named  in  the 
Corpora-  said  will  and  codicil  of  the  said  E.  M.,  and 
convey*7  now  h°lcong  under  the  appointment  of  the 
estate  probate  court  within  and  for  the  county 
of,  etc.,  are  hereby  authorized  to  convey  the  estate 
real  and  personal  now  in  their  possession  or  standing 
in  their  names  as  trustees  as  aforesaid  or  in  the 
name  of  E.  M.,  including  all  reversions  and  re- 
mainders after  the  Me  estates  provided  for  by  said 
will  to  said  corporation;  and  upon  the  allowance  hi 
said  probate  court  of  the  accounts  of  said  trustees 
to  the  date  of  said  conveyance  to  said  corporation, 


PUBLIC   CHARITIES  597 

said  trustees  shall  be  discharged  by  said  probate 
court. 

SECT.  5.  Nothing  in  this  act  shall  be  construed  to 
impair  the  jurisdiction  of  the  supreme  judicial  court 
over  the  subject  matter  of  the  trust  ere- 


ated  by  said  will  and  codicil;  but  said  tionof 
corporation  shall,  in  the  execution  of  the 
purposes  for  which  it  is  created,  be  held  to  have 
the  same  powers,  and  be  subject  to  the  same  limi- 
tations hi  respect  thereof  which  are  applicable  to  said 
trustees  by  the  provisions  of  said  will  and  codicil. 

SECT.  6.  Upon  the  death  or  resignation  of  any 
of  said  incorporators  their  successors  shall  Successors 
be  appointed  by  the  probate  court  within  to  be 

appointed 

and  for  the  county  of,  etc. 

SECT.  7.   Nothing  hi  this  act  shall  be  construed 

as  exempting  from  taxation  any  of  the  _ 

>  ^        laxauon 

property  held  hi  trust  by  this  corporation 
excepting  that  held  for  educational  purposes. 
SECT.  8.   This  act  shall  take  effect  upon  its  passage. 

Be  it  enacted,  etc.,  as  follows: 

SECTION  1.  A.  B.,  C.  D.,  E.  F.,  G.  H.,  I.  J.,  K.  L., 
M.  N.,  0.  P.,  Q.  R.,  S.  T.,  and  U.  V.,  the  trustees 
named  in  the  last  will  of  R.  N.,  late  of  W.,  Trustees  of 
are  hereby  made  a  corporation  by  the 
name  of  The  Trustees  of  N.  Hospital,  and 
said  trustees,  their  associates  and  successors  in  office, 
shall  continue  a  body  corporate  for  the  purposes 
hereinafter  set  forth,  and  set  forth  in  said  will;  with 
all  the  powers  and  privileges  and  subject  to  all  the 


598  TESTAMENTARY   FORMS  —  APPENDIX   II 

duties  and  liabilities  contained  in  all  general  laws 
now  or  hereafter  in  force  relating  to  such  corporations. 
SECT.  2.  Said  corporation  shall  have  authority  to 
buy  and  hold  real  and  personal  estate  to  an  amount 
May  buy  no*  exceeding  two  hundred  and  fifty  thou- 
and,  etc.,  sancj  dollars,  including  all  the  real  and 

property  not 

exceeding  personal  estate,  and  the  proceeds  thereof, 
bequeathed  and  devised  in  said  will  for 
the  establishment  and  maintenance  of  a  hospital 
in  W.,  and  any  and  all  personal  and  real  estate 
which  may  be  otherwise  given,  granted,  bequeathed 
or  devised  to  said  corporation,  for  the  use  and  bene- 
fit of  said  hospital. 

SECT.  3.   Whenever  the  Trustees  incorporated  by 
this  act  shall,  for  any  cause,  become  less  than  nine 

in  number,  the  remaining  trustees  shall 
Trustees, 
number  of    choose  by  ballot  some  person  or  persons 

fjjjingSof  '     ^0  fill  the  vacancy  or  vacancies  until  the 


vacancies,    sa^  trustees  shall  be  nine  in  number;  and 
etc. 

thereafter  the  number  of  trustees  shall 
continue  to  be  nine;  and  any  vacancy  thereafter 
occurring  shall  be  filled  by  ballot  by  the  remaining 
trustees.  The  said  nine  trustees  shall  always  consist 
of  four  female  and  five  male  members.  They  shall 
serve  without  pay,  and  no  bonds  shall  be  required  of 
them.  They  shall  always  be  residents  of  W.,  and 
no  trustee  shall  continue  to  hold  his  office  after 
ceasing  to  be  a  resident  of  W. 

SECT.  4.  The  trustees  shall  have  the  care  and 
management  of  said  hospital  and  of  the  funds  thereof. 
They  shall  have  full  power  to  elect  or  appoint  such 


PUBLIC    CHARITIES  599 

officers  as  from  time  to  time  they  may  think  neces- 
sary or  expedient,  and  generally  to  do  all    Powers 
acts  and  things  necessary  or  expedient  to   and  duties 
be  done  for  the  purpose  of  carrying  into  effect  the 
provisions  and  purposes  of  said  will  and  of  this  act. 

SECT.  5.   The  town  of  W.  is  hereby  authorized  to 
raise  by  taxation  sums  of  money  not  ex-  Town  may 
ceeding  one  thousand  dollars  hi  any  one  SoneJ'fS? 
year,  and  to  appropriate  the  same  towards  hosPital 
the  support  and  maintenance  of  said  hospital. 

SECT.  6.   This  act  shall  take  effect  upon  its  passage. 

Be  it  enacted,  etc.,  as  follows: 

SECTION  1.   A.  B.,  C.  D.,  and  E.  F.,  the  trustees 
named  in  the  will  of  the  late  C.  C.  D.  of  H.,  are 
hereby  made  a  corporation  by  the  name  corpora- 
of  the  C.  D.  Hospital,  and  said  trustees,  tors 
their  associates  and  successors  in  office,  shall  con- 
tinue a  body  corporate  for  the  purposes  hereinafter 
set  forth  and  set  forth  in  said  will;  with  Name  and 
all  the  powers  and  privileges  and  subject  P"1?086 
to  all  the  duties  and  liabilities  contained  in  all  gen- 
eral laws  now  or  hereinafter  in  force  relating  to  such 
corporations.    And  the  said  A.  B.,  C.  D.,  Powers 
and  E.  F.  shall  hold  office  as  the  incorpo-  ***  duties 
rated  trustees  until  their  associates,  substitutes  or 
successors   are   chosen  in   the  manner  hereinafter 
provided  and  shall  assume  their  offices. 

SECT.  2.  Said  corporation  shall  have  authority  to 
buy  and  hold  real  and  personal  estate  to  an  amount 
not  exceeding  two  hundred  and  fifty  thousand  dol- 


600  TESTAMENTARY   FORMS  —  APPENDIX   II 

lars  including  all  the  real  and  personal  estate  and 
Real  and      ^ne  proceeds  thereof  bequeathed  and  de- 


personal       vised  in  said  will  for  the   establishment 

estate  not 

exceeding  and  maintenance  of  a  hospital  in  N.,  and 
any  and  all  real  and  personal  estate  which 
may  be  otherwise  given,  granted,  bequeathed  or 
devised  to  said  corporation  for  the  use  and  benefit  of 
said  hospital. 

SECT.  3.  The  number  of  the  trustees  of  said  cor- 
poration shall  never  exceed  seven;  and  said  corpora- 
Trustees  ^on  may  a^  any  te&d  meetmg  elect  by 


not  to  ex-  ballot  any  citizen  of  the  city  of  N.  or  of 
either  of  the  towns  of  H.  and  W.  to  be  a 
member  thereof.  No  person  shall  continue  a  member 
of  said  corporation  after  ceasing  to  be  a  resident  of 
one  of  said  three  places. 

SECT.  4.  Said  corporation  may  choose  and  elect 
such  officers  as  may  be  required  to  give  effect  to  the 
Election  of  purposes  and  provisions  of  said  will,  and 
is  hereby  authorized  to  accept,  execute 
and  perform  any  and  all  the  other  trusts  arising  under 
said  will  which  the  executors  thereof  or  any  special 
trustee  might  do. 

SECT.  5.  This  act  shall  take  effect  upon  its  passage. 

Be  it  enacted,  etc.,  as  follows: 

SECTION  1.  A.  B.,  C.  D.,  E.  F.,  G.  H.,  I.  J.,  K.  L., 

and  M.  N.,  all  of  the  town  of  N.,  who  were  appointed 

Corpora-      trustees  of  the  funds  bequeathed  by  S.  L.  H.  , 

late  of  N.,  deceased,  and  their  successors 

in  said  trust,  are  hereby  made  a  corporation  by  the 


PUBLIC    CHARITIES  601 

name  of  the  Trustees   of    Florence  Kindergarten, 
for  the  purpose  of  holding  and  managing  Name  and 
said  funds  bequeathed  to  them  by  said  will  P"^086 
and  other  property  real  and  personal  not  exceed- 
ing in  all  five  hundred  thousand  dollars,  for  the  pur- 
pose of  the  trust  as  set  forth  in  said  will,  and  with 
all  the  powers  and  privileges  and  subject  Powers 
to  all  the  duties,  restrictions  and  liabilities  and  duties 
of  the  general  laws  relating  to  literary  and  charitable 
corporations. 

SECT.  2.   Said  corporation  shall  be  managed  by  a 
board  of  trustees  composed  of  said  incor-  xobeman- 

porators.      Vacancies    occurring    in    said  aged  by 

trustees 
board   of   trustees   shall   be   filled   by   a  T 

.     .  .    .  Vacancies 

majority  vote  of  the  remaining  trustees. 

SECT.  3.  This  act  shall  take  effect  upon  its  passage. 

Be  it  enacted,  etc.,  as  follows: 

SECTION  1.  A.  B.,  C.  D.,  E.  F.,  G.  H.,  and  the 
mayor  of  the  city  of  N.  for  the  time  being,  their 
associates  and  successors,  are  hereby  made  corpora- 
a  corporation  by  the  name  of  the  W.  tors 
Scientific  School,  for  the  purpose  of  establishing  a 
scientific  school  in  said  N.,  or  assisting  young  men 
of  that  city  as  provided  hi  the  will  of  Name  and 
W.  W.,  deceased,   to  obtain  a  scientific  purpose 
education;  with  all  the  powers  and  privileges  and 
subject  to  all  the  duties,  restrictions  and  Powers 
liabilities  set  forth  hi  all  general  laws  which  and  duties 
now  are  or  may  hereafter  be  in  force  and  applicable 
to  such  corporations. 


602  TESTAMENTARY   FORMS  —  APPENDIX   II 

SECT.  2.  The  said  corporation  shall  have  authority 
to  receive,  hold  and  manage  the  fund  bequeathed 

M  h  id  ^or  ^e  PurP°ses  f°r  which  the  said  corpo- 
and  man-  ration  is  created  by  the  will  of  W.  W.,  late 
of  N.,  deceased,  and  any  other  donations 
or  bequests  which  may  be  made  for  its  benefit,  and 
may  hold  for  the  purposes  aforesaid  real  and  per- 
sonal estate  to  an  amount  not  exceeding  three  hun- 
dred thousand  dollars. 

SECT.  3.  The  officers  of  said  corporation  shall 
consist  of  the  trustees  under  said  will,  one  of  whom 
officers  to  snau<  be  president;  also  a  treasurer  and  a 
consist  of  secretary,  who  may  or  may  not  be  members 

trustees 

under  the  of  said  board  of  trustees.  Whenever  a 
trustee  shall  die  or  resign  or  become  in- 
competent to  discharge  the  duties  of  his  trust,  a 
successor  shall  be  elected  by  ballot  by  the  remain- 
ing trustees;  but  no  person  so  elected  shall  have 
any  authority  to  act  as  trustee  until  approved  as 
such  by  the  judge  of  probate  for  the  county  of, 
etc. 

SECT.  4.   The  said  institution  shall  be  established 

hi  said  N.,  and  shall  be  conducted  and  managed  in 

accordance  with  the  provisions  of  the  will 

lo  be  es- 
tablished     of  W.  W.     It  shall  as  often  as  once  in 

•  TCT- 

three  years,  and  oftener  when  thereto  re- 
quested, render  to  the  probate  court  for  the  county 
of,  etc.,  and  also  to  the  city  of  N.  an  account  of 
all  receipts  and  disbursements  of  the  said  trust 
fund. 

SECT.  5.   This  act  shall  take  effect  upon  its  passage. 


PUBLIC    CHAKITIES  603 

Be  it  enacted,  etc.,  as  follows: 

SECTION  1.   A.  B.,  C.  D.,  E.  F.,  and  G.  H.,  all  of 
S.  in  the  county  of  H.,  trustees  of  the  funds  created 
for   charitable   purposes   by  the   will   of  corpora- 
J.  W.  H.,  late  of  said  S.,  deceased,  and  their  tors 
successors  in  said  trust,  are  herebymade  a  corporation 
by  the  name  of  the  Trustees  of  the  J.  W.  H.  Fund, 
for  the  purpose  of  managing  said  funds  and  Name  and 
dispensing  said  charities  with  greater  facil-  P111?036 
ity  and  security;  with  all  the  powers  and  privileges 
and  subject  to  all  the  restrictions,  duties  and  lia- 
bilities set  forth  in  the  general  laws  which  now  are 
or  hereafter  may  be  hi  force  and  applicable  to  such 
corporations. 

SECT.  2.   Said  corporation  may  hold  all  such  notes, 
mortgages,  deeds  and  moneys  as  may  have  been  given 
or  transferred  to  the  trustees  aforesaid  in  corporate 
their  said  capacity,  and  may  sue  and  re-  P°wers 
cover  upon  the  same  without  any  special  or  further 
conveyance  or  transfer  thereof  to  the  said  corporation; 
and  may  hold  and  dispose  of  real  estate  to  any  amount 
which  may  have  been  by  said  trustees,  or  may  be  by 
said  corporation,  taken  as  security  for  or  in  payment 
of  any  debt  due  to  said  trustees  or  said  corporation. 

SECT.  3.  Nothing  in  this  act  contained  shall  be 
construed  as  altering  the  mode  of  ascertaining  the 
persons  who  shall  be  trustees  of  said  funds  obligations 
from  time  to  time  which  is  provided  in  oftrustees 
said  will;  nor  as  relieving  such  trustees  from  the 
obligation  of  giving  bonds  as  required  by  law,  or 
from  any  liability  which  they  may  have  incurred  or 


604  TESTAMENTARY   FORMS  —  APPENDIX   II 

hereafter  may  incur  by  virtue  of  such  bonds;  nor 
as  restricting,  enlarging,  or  in  any  way  changing 
the  provisions  of  said  will,  or  the  scheme  of  charity 
therein  set  forth. 

SECT.  4.  The  city  council  of  the  city  of  S.  is  hereby 
authorized  to  direct  the  payment  from  the  treasury 

Certain  °^  sa^  c^  *°  sa^  corporation  of  a  sum 
taxes  to  be  equal  to  the  amount  paid  as  taxes  by  said 
trustees  to  said  city  hi  the  year  eighteen 
hundred  and  eighty-one,  to  be  held  and  used  by 
said  corporation  as  income  of  said  trust  fund  in  the 
manner  provided  by  said  will. 

Property  SECT.    5.    All    of    the    funds    and    prop- 

exempted     erty   aforesaid    shall    be   exempted   from 

from 

taxation       taxation. 

Whereas,  G.  S.  B.,  late  of  the  city  of  F.,  deceased, 
hi  and  by  his  last  will  and  testament  bearing  date 
April  twelfth,  eighteen  hundred  and  seventy-five,  and 
proved  and  allowed  by  the  probate  court  holden  at 
W.  within  and  for  the  county  of  W.,  on  the  sixth  day 
of  March,  A.  D.  eighteen  hundred  and  eighty-eight, 
did  make  provision  for  founding  and  maintaining  a 
hospital  within  said  city  of  F.,  and  for  the  use  of  all 
its  inhabitants,  by  a  generous  bequest,  now  amount- 
ing to  more  than  four  hundred  and  thirty  thousand 
dollars.  Now,  therefore,  to  enable  the  inhabitants 
of  said  city  of  F.  to  receive  the  benefits  of  said  gen- 
erous bequest  of  said  testator  and  effectually  to  realize 
and  meet  the  benevolent  intention  expressed  in  said 
will,  therefore,  — 


PUBLIC    CHARITIES  605 

Be  it  enacted,  etc.,  as  follows: 

SECTION  1.   A.  B.,  C.  D.,  E.  F.,  G.  H.,  I.  J.,  K.  L., 
M.  N.,  O.  P.,  Q.  R.,  S.  T.,  U.  V.,  W.  X.,  Y.  Z.,  B.  M., 
and  H.  E.,  all  of  said  F.,  and  their  successors  who 
shall  be  residents  therein,  are  hereby  made  B  Hog  ital 
a  corporation  by  the  name  of  the  B.  Hos-  incorpo- 
pital,  for  the  sole  purpose  of  establishing 
and  maintaining  a  public  hospital  for  the  use  of  the 
inhabitants  of  the  said  city  and  others  who  may  be 
admitted  thereto  under  the  provisions  of  said  will 
who  may  require  medical  and  surgical  treatment. 

SECT.  2.   Said  corporation  shall  have  authority 
for  the  purpose  aforesaid,  and  no  other,  Realand 
to  hold  real  and  personal  estate  to  the  personal 
amount  of  eight  hundred  thousand  dollars. 

SECT.  3.  The  mayor  of  the  city  of  F.,  the  president 
of  the  common  council  and  the  city  treasurer,  sev- 
erally for  the  tune  being,  shall  be  trustees  Board  of 
ex-officiis  during  the  terms  of  their  respec-  trustees 
tive  offices,  and  together  with  the  corporators  above 
named  shall  constitute  the  board  of  trustees,  of 
whom  the  mayor  shall  be  ex-officio  chairman,  and 
whose  terms  of  office  except  as  above  provided  shall 
be  as  follows:  The  trustees  shall  hi  the  month  of 
January  in  the  year  eighteen  hundred  and  ninety-one 
elect  five  of  their  members  whose  terms  of  office  are 
not  fixed  as  above,  who  shall  hold  for  the  term  of  one 
year  from  the  first  day  of  February  in  the  year 
eighteen  hundred  and  ninety-one,  and  five  of  their 
own  number  who  shall  hold  for  the  term  of  two  years 
from  the  said  first  day  of  February,  and  the  remain- 


606  TESTAMENTARY   FORMS  —  APPENDIX   II 

ing  five  shall  be  elected  to  hold  for  the  term  of  three 
years  from  the  said  first  day  of  February,  and  who 
shall  severally  hold  for  the  terms  for  which  they  are 
elected  and  until  their  successors  are  chosen,  and 
thereafter  each  class  in  succession  for  the  period  of 
three  years.  Six  members  of  the  board  shall  consti- 
six  mem-  tute  a  quorum  except  hi  the  election  or 
constitute  removal  of  trustees,  when  a  majority  of  the 
a  quorum  board  shall  be  required.  Whenever  a 
vacancy  shall  occur  in  the  board  of  trustees  by  reason 
of  the  death,  resignation  or  otherwise  of  the  members 
so  elected,  the  remaining  trustees  shall  fill  the  va- 
cancy for  the  unexpired  term.  If  the  board  of  trustees 
shall  fail  for  three  months  to  elect  its  members  in 
accordance  with  the  provisions  of  this  act,  the  city 
council  of  the  city  of  F.  shall  forthwith  proceed  to 
an  election  by  concurrent  vote.  No  member  of  the 
board  as  such  shall  receive  compensation  for  his 
services.  And  the  city  of  F.  is  hereby  authorized 
Funds  etc.  an<^  empowered  to  place  in  trust  in  the 

maybe        hands  of  the  trustees  of  said  corporation 

placed  in 

hands  of      all  funds,  gifts  and  bequests,  which  are  or 

may  be  held  by  it  for  the  purpose  of  estab- 
lishing and  maintaining  said  hospital,  especially  all 
sums  it  may  from  tune  to  tune  receive  from  the 
trustees  appointed  under  the  will  of  G.  S.  B.,  late  of 
said  F.,  deceased.  And  said  corporation  shall,  upon 
the  acceptance  of  this  act  by  the  city  council  as 
hereinafter  provided,  receive  and  hold  all  past  and 
future  bequests  and  gifts  that  may  be  made  for  the 
maintenance  of  said  hospital,  and  the  same  shall 


PUBLIC    CHARITIES  607 

be  appropriated,  held  and  used  by  said  corporation 
for  the  sole  use  and  purpose  aforesaid  as  a  trust  in 
behalf  of  and  for  the  inhabitants  of  said  city,  and 
to  such  other  persons  as  may  be  permitted  to  enjoy 
the  benefits  of  said  hospital  in  pursuance  of  the  pro- 
visions of  said  will.  And  said  trustees  shall  render 
to  the  city  council  annually  in  the  month  TO  make 
of  January  a  report  of  their  proceedings,  ^utothe 
with  a  statement  of  the  condition  of  the  dty  counca 
hospital,  the  property  and  funds  pertaining  to  the 
same,  with  an  accurate  account  of  all  receipts  and 
expenditures,  together  with  such  other  information 
or  suggestions  as  they  may  deem  desirable  or  the  city 
council  may  at  any  tune  require.  And  said  trustees 
shall  in  behalf  of  said  "city  carefully  and  considerately 
carry  into  execution  the  generous  plan  of  the  testator 
as  contemplated  by  the  said  will. 

SECT.  4.  And  said  trustees  shall  appoint  a  treas- 
urer, and  shall  require  of  him  a  bond  with  satis- 
factory sureties  hi  the  penal  sum  of  not  less  than 
twenty-five  thousand  dollars  for  the  faithful  dis- 
charge of  his  duties,  and  his  books  of  accounts  and 
vouchers  shall  at  all  times  be  open  to  the  trustees 
aforesaid,  or  any  one  of  them. 

SECT.  5.   The  trustees  shall  appoint  a  clerk  whose 
duty  it  shall  be  to  keep  a  full  and  fair  TO  appoint 
record  of  the  proceedings  of  the  board,  a  clerk 
and  to  discharge  such  other  duties  as  they  shall 
from  tune  to  tune  prescribe.    The  compen-  compensa- 
sation  of  the  treasurer  and  clerk  shall  be  taon 
fixed  by  the  board  of  trustees. 


608  TESTAMENTARY   FORMS  —  APPENDIX   II 

SECT.  6.  The  trustees  shall  have  full  power  to 
elect  such  other  officers  as  they  may  from  time  to 
To  have  time  think  necessary  or  expedient,  and 
eiectother  *°  determine  and  appoint  the  tenure  of 
officers  their  offices,  and  of  those  of  the  treasurer 
and  clerk;  to  remove  any  trustee  who  shall  be  inca- 
pable through  age,  infirmity  or  otherwise  for  the 
discharge  of  his  duties  as  said  trustee,  or  who  by 
unreasonable  absence  from  the  meetings  of  the 
board  shall  fail  to  discharge  the  duties  of  his 
office,  and  generally  to  do  all  acts  and  things 
necessary  to  be  done  for  the  purpose  of  carry- 
ing into  full  effect  the  provisions  and  purposes 
of  this  act. 

SECT.  7.  It  shall  be  the  duty  of  the  trustees  to 
safely  and  securely  invest,  or  to  hold  invested,  the 
investment  trust  funds  derived  under  said  will  or 
of  funds  otherwise,  and  they  shall  have  regard  at 
all  tunes  to  all  the  provisions  of  said  will  affecting 
said  trust  and  the  desire  of  the  testator  as  expressed 
therein,  and  particularly  to  the  suggestions  made  in 
the  following  extract  therefrom: 

EXTRACT  FROM  THE  WILL  OF  G.  S.  B. 

And  the  remainder  of  said  principal  not  herein- 
before disposed  of  under  the  preceding  provisions  of 
Extract  this  will  I  direct  my  trustees  to  pay  over 

wafof116  *°  *ne  c^v  °f  F.  as  ^ar  as  anc^  as  fas*  fl-8 
G.  s.  B.  ft  is  released  from  the  charges  and  annui- 
ties hereinbefore  created,  for  the  founding  and  main- 


PUBLIC    CHARITIES  609 

taining  of  a  hospital  for  the  care  of  the  sick.  And 
while  I  do  not  wish  to  embarrass  this  gift  with  pro- 
visions and  restrictions,  but  desire  that  the  city  shall 
carefully  and  considerately  carry  my  plan  into 
execution,  believing  that  founders  of  benevolent 
institutions  like  the  one  I  contemplate  often  create 
great  difficulties  by  endeavoring  to  settle  in  advance 
the  details  of  the  work  they  have  projected,  still  I 
wish  to  indicate  in  general  terms  two  purposes 
which  I  desire  to  have  executed.  First:  I  desire 
that  a  substantial  and  commodious  hospital  building 
shall  be  erected;  and  as  I  trust  my  charity  may  sur- 
vive and  do  good  to  the  poor  for  many  generations, 
and  also  believe  that  the  city  of  F.  will  hi  tune  be  a 
large  and  prosperous  city,  I  would  suggest  that  the 
sum  of  at  least  one  hundred  thousand  dollars  be 
devoted  to  the  purchase  of  the  necessary  land  and 
the  erection  of  the  structure.  And  I  also  request 
and  direct  that  while  those  who  are  able  to  pay  for 
the  services  rendered  them  in  the  hospital  may  be 
subjected  to  such  moderate  and  reasonable  charge 
as  is  usual  hi  such  cases  hi  similar  charitable  insti- 
tutions, those  on  the  other  hand  who  are  in  poverty 
and  sickness  shall  ever  be  received  and  cared  for 
kindly  and  tenderly  "  without  money  and  without 
price"  and  without  regard  to  color  or  nationality. 
It  is  by  the  request  of  my  wife,  whose  good 
judgment  has  so  greatly  aided  me  in  all  the  affairs 
and  purposes  of  my  life,  that  I  was  led  to  make 
the  foregoing  provision  for  the  foundation  of  a 
hospital. 


610  TESTAMENTARY   FORMS  —  APPENDIX   II 

SECT.  8.  This  act  shall  take  effect  whenever  it 
TO  take  snall  be  accepted  by  a  concurrent  vote  of 
effect  upon  the  board  of  aldermen  and  common  council 

acceptance 

of  the  city  of  F. 

SECT.  9.  Nothing  in  this  act  contained  shall  be 
held  to  alter  or  impair  any  trust  created  by  said 
Trust  ere-  will.  And  the  corporation  hereby  created, 
noMc^e^  acting  through  its  trustees  and  proper 
impaired  officers,  shall  be  deemed  the  agent  of  said 
city  of  F.  for  the  proper  execution  of  all  trusts  aris- 
ing under  the  provisions  of  said  will.  And  nothing 
in  this  act  contained  shall  be  construed  as  releasing 
the  city  of  F.  from  any  obligation  arising  from  the 
acceptance  of  said  bequest  under  said  will,  or  from 
any  condition  made  therein.  And  the  said  A.  B.  is 
F  hereby  authorized  and  empowered  to  pre- 

ingof          scribe  the  time  and  place  for  the  holding 
of  the  first  meeting  of  said  trustees  and  to 
notify  them  thereof. 

Be  it  enacted,  etc.,  as  follows: 

SECTION  1.  The  city  of  F.  is  hereby  authorized 

to  borrow  the  sum  of  one  hundred  thousand  dollars 

and  to  issue  its  notes  or  certificates  of 

$100,000      indebtedness  therefor  at  a  rate  of  interest 


exceeding  four  per  centum  per  annum, 
a^  monev  sna^  ke  expended  for  the 
purchase  of  land  and  the  erection  of  a 
hospital  building  in  said  city  as  contemplated  in 
the  bequest  made  therefor  in  the  will  of  G.  S.  B. 
late  of  said  F.,  deceased:  provided,  that  from  the  sum 


PUBLIC    CHARITIES  611 

received  under  said  will  by  said  city,  or  by  any  per- 
son or  corporation  in  its  behalf,  no  allow- 
ance  shall  be  made  for  any  interest  paid, 
or  discount  allowed,  on  account  of  money  borrowed 
and  expended  as  aforesaid;  provided,  further,  that 
the  indebtedness  so  created  by  said  city  shall  not  be 
included  hi  determining  the  amount  of  debt  said 
city  is  authorized  to  incur  under  existing  provisions 
of  law. 

SECT.  2.  This  act  shall  take  effect  upon  its 
passage. 

Be  it  enacted,  etc.,  as  follows: 

SECTION  1.  A.  B.  of  S.,  C.  D.,  E.  F.,  G.  H.,  I.  J., 
K.  L.,  M.  N.,  0.  P.,  and  Q.  R.,  all  of  N.,  and  their 
associates  who  may  be  elected  under  the    corpora- 
provisions  of  the  will  of  W.  W.  S.  late  of   tors 
said  N.,  to  fill  existing  vacancies  in  the  board  of 
trustees  named  in  said  will,  and  their  successors, 
are  hereby  incorporated  by  the  name  of  the  Trustees 

of  the  S.  Free  School,  with  all  the  powers 

.    .,  .  .  .        .  Name 

and  privileges  requisite  for  carrying  into 

full  effect  the  provisions  of  said  will,  and  with  all 
the  powers,  rights  and  privileges,  and  subject  to  all 
the  duties,  restrictions  and  liabilities  set  Powers 
forth  in  all  general  laws  which  now  are  ^duties 
or  hereafter  may  be  hi  force  and  applicable  to  such 
corporations. 

SECT.  2.  Said  corporation  may  take  and  hold  all 
and  singular  the  estate,  real  and  personal,  devised 
and  bequeathed  by  the  said  W.  W.  S.  by  his  said 


612  TESTAMENTARY   FORMS  —  APPENDIX   II 

will  and  codicil  to  his  trustees  therein  named  for  the 
May  take  purposes  aforesaid,  together  with  its  accu- 
and  hold  mulations  heretofore  made,  and  may  take 

estate  be- 
queathed     and  hold  any  other  and  further  estate,  real 

and  personal,  which  may  be  acquired  by 
them  by  gift,  devise,  purchase  or  otherwise  for  the 
same  purposes:  provided,  however,  that  the  actual 
N  value  of  the  real  and  personal  estate  by 

exceed        them  so  held  and  possessed  shall  not  exceed 

the  sum  of  four  hundred  thousand  dollars, 
all  of  which  estates  shall  be  devoted  and  appropriated 
exclusively  for  the  purposes  of  education  hi  the  man- 
ner set  forth  in  said  will  and  codicil. 

SECT.  3.  After  the  organization  of  the  corporation 
created  by  this  act,  the  surviving  executor  of  the 
Executor  said  will  of  W.  W.  S.  and  the  trustees  now 
tees  may  holding  under  the  appointment  of  the  pro- 
tateTo  cor-  ^a*e  cour^  within  and  for  the  county  of  B., 
poration  and  K.  L.  his  and  their  attorney,  are 
hereby  authorized  to  convey  the  estate,  real  and 
personal,  now  hi  their  possession  or  standing  in  their 
names  or  in  the  name  of  the  estate  of  W.  W.  S.  or 
of  the  executors  of  the  will  or  estate  of  W.  W.  S.  or 
of  K.  L.  attorney  for  A.  B.,  surviving  executor  of 
the  will  of  W.  W.  S.,  or  however  the  same  may  be 
expressed,  to  said  corporation,  and  upon  the  allow- 
ance hi  said  probate  court  of  the  account  of  said 
trustees  from  the  date  of  the  allowance  of  the  final 
account  of  said  surviving  executor  to  the  date  of 
said  conveyance  to  said  corporation,  said  trustees 
shall  be  discharged  by  said  probate  court. 


PUBLIC   CHARITIES  613 

SECT.  4.   Nothing  in  this  act  shall  be  construed 
to  impair  the  jurisdiction  of  the  supreme  judicial 
court,  sitting  hi  equity,  to  grant  to  said   Junsdic- 
corporation  authority  to  sell  and  dispose   court  in 


of  its  real  estate  ;  but  said  corporation  shall, 
in  the  execution  of  the  purposes  for  which 
it  is  created,  be  held  to   have   the  same  powers, 
and  be  subject  to  the  same  limitations  in  respect 
thereof,  which  are  applicable  to  the  said  trustees 
by  the  provisions  of  said  will. 
SECT.  5.  This  act  shall  take  effect  upon  its  passage. 

Be  it  enacted,  etc.,  as  follows: 

SECTION  1.  A.  B.  and  C.  D.,  appointed  by  the 
probate  court  trustees  for  the  tune  being  under  the 
will  of  the  late  C.  E.  F.  of  N.,  are  hereby  Trustees 
made  a  corporation  by  the  name  of  the  library  in- 
"  Trustees  of  the  F.  Library,"  and  said  corporated 
trustees  their  associates  and  successors  hi  office  shall 
continue  a  body  corporate  for  the  purposes  herein- 
after set  forth,  with  all  the  powers  and  privileges 
and  subject  to  all  the  duties,  restrictions  and  liabil- 
ities in  the  general  laws  relating  to  such  corporations. 
And  the  said  A.  B.  and  C.  D.  shall  hold  office  as  such 
incorporated  trustees  until  their  substitutes  and  suc- 
cessors are  elected  in  the  manner  hereinafter  pro- 
vided and  shall  assume  their  offices. 

SECT.  2.  The  said  corporation  shall  have  authority 
to  take  and  hold  real  and  personal  estate  to  an 
amount  not  exceeding  eight  hundred  thousand  dol- 
lars, including  all  the  real  and  personal  estate  and 


614  TESTAMENTARY   FORMS  —  APPENDIX   II 

the  proceeds  thereof  bequeathed  and  devised  by  said 


Real  and         '     '     '  establishment  and  main- 

personal      tenance  of  a  library  in  said  N.,  and  any 

estate  not  ' 

to  exceed     and  all  real  and  personal  estate  which  may 
be  otherwise  given,  granted,  bequeathed 
and  devised  to  said  corporation  or  to  said  town  of 
N.  for  the  use  and  benefit  of  said  library. 

SECT.  3.  The  legal  voters  of  the  town  of  N.  may, 
at  annual  or  special  town  meeting  called  for  the  pur- 
Town  may  Pose  after  the  passage  of  this  act,  vote  to 
trusted  or  acceP^  the  same,  as  also  the  provisions  and 
trustees,  bequests  of  said  will  upon  the  terms  and 
ceptance  conditions  prescribed  therein;  and  at  the 
same  or  any  future  meeting  within  the 
tune  limited  by  said  will,  articles  being  inserted  in 
the  warrant  for  that  purpose,  it  shall  be  lawful  for 
the  town  to  determine  by  vote  whether,  in  the  exer- 
cise of  the  option  authorized  by  said  will,  it  will 
elect  one  or  three  trustees  to  have  the  superintend- 
ence and  management  of  the  affairs  of  said  corpora- 
tion; and  when  said  option  is  determined  it  may,  at 
the  same  or  a  future  meeting,  proceed  to  the  election, 
by  ballot,  of  a  single  trustee,  or  of  three  trustees,  ac- 
cording as  the  town  shall  have  predetermined  by  its 
vote  ;  and  upon  the  election  of  said  trustee  or  trustees 
the  same  shall  hold  office  until  his  or  their  successors 
shall  have  been  respectively  elected  and  qualified 
as  hereinafter  provided,  or  until  a  vacancy  in  office 
shall  occur  through  the  resignation,  death  or  removal 
from  office  of  any  trustee;  and  the  said  town,  at  the 
same  meeting  when  this  act  is  accepted  or  at  a 


PUBLIC   CHARITIES  615 

future  meeting  within  the  time  limited  by  said  will, 
an  article  being  in  the  warrant  for  that  purpose, 
may  determine  whether  it  will  direct  the  j0 
trustees  holding  office  by  appointment  of 


the  probate  court  to  permit  the  whole  of  years  the 
sum  appropriated  by  said  will  for  library  shall  accu- 
purposes  to  accumulate  for  a  term  not  B 
exceeding  ten  years,  and  for  what  term,  as  authorized 
by  said  will,  in  order  to  increase  the  amount  avail- 
able as  a  building  fund;  also,  at  the  same  or  any 
future  meeting,  the  said  town  may  determine  and 
direct  as  to  any  other  matter  or  thing  which  it  is 
competent  for  the  town  to  determine,  direct  and  do, 
under  an  article  hi  the  warrant  therefor,  by  way  of 
carrying  into  effect  the  provisions  of  said  will,  and 
in  anticipation  of  the  tune  when  the  trustees  ap- 
pointed by  the  probate  court  shall  convey  to  the 
trustee  or  trustees  elected  by  the  town,  the  real,  per- 
sonal and  mixed  estate  held  by  the  former  for  the 
uses  and  purposes  of  said  library. 

SECT.  4.   If  said  town,  in  the  exercise  of  its  option 
before  referred  to,  shall  elect  to  have  but 


one  trustee,  the  name  of  said  corporation  corporation 

if  but  one 
shall  be  "The  Trustee  of  the  F.  Library";  trustee  is 

and  whether  the  town  shall  elect  one  or 

three  trustees,  no  trustee  shall  receive  any  pecuniary 

compensation  for  his  services. 

SECT.  5.  If  said  town  shall  elect  one  trustee  only 
to  have  the  superintendence  and  management  of 
the  affairs  of  said  corporation,  said  trustee  shall  hold 
office  for  the  term  of  three  years  from  the  first 


616  TESTAMENTARY   FORMS  —  APPENDIX   II 

Wednesday  in  May  next  after  said  trustee  shall  have 

_     .  been  elected,  and  once  in  three  years  there- 

Trustees  to 

serve  for  after  at  the  annual  town  meeting  holden  next 
three  years  .  ,  . 

before  his  term  expires,  his  successor  shall 

be  chosen  in  his  stead.  If  however  said  town  shall 
hi  its  option  determine  to  elect  three  trustees,  said 
trustees  shall  be  elected,  one  to  serve  for  the  term 
of  three  years  from  the  first  Wednesday  hi  May  next 
after  said  election,  one  other  for  two  years,  and  the 
third  for  one  year  from  the  same  date;  and  annually, 
at  the  annual  town  meeting  in  each  year  after  said 
first  election,  a  trustee  shall  be  elected  for  three  years 
to  succeed  the  trustee  whose  term  is  then  next  to  expire. 

SECT.  6.  In  case  a  vacancy  shall  occur  in  the  office 
of  any  trustee  chosen  by  the  town,  whether  occa- 
Vacanc  in  si°ne(^  by  resignation,  death,  removal  from 
office  of  office,  or  from  any  other  cause,  the  town 
may  at  any  meeting  called  for  the  purpose 
choose  another  trustee  who  shall  hold  office  for  the 
residue  of  the  unexpired  term. 

SECT.  7.  The  said  town  of  N.  is  hereby  further 
authorized  at  any  annual  or  special  meeting  legally 
Town  to  notified  and  warned,  to  elect  a  secretary 


tarv^treas-  an(*  treasurer  °f  sa^  corporation,  and  all 
urer,  etc.,     other  agents  and   employes   therein,  and 

and  fix 

compensa-  to  remove  the  same  at  their  pleasure;  to 
fix  the  compensation  of  each;  to  establish 
all  necessary  rules  and  regulations  for  the  library, 
and  generally  to  control  all  the  affairs  of  the  corpora- 
tion; but  hi  the  absence  of  action  on  the  part  of  the 
town  the  trustee,  or  a  majority  of  the  trustees  elected 


PUBLIC    CHARITIES  617 

by  the  town  in  accordance  with  the  provisions  of  this 
act,  being  first  duly  sworn  to  a  faithful  discharge  of 
the  duties  of  their  office,  shall  have  the  general 
superintendence  and  management  of  the  affairs  of 
the  corporation,  shall  appoint  the  librarian  and  other 
employes  in  the  library,  and  fix  the  compensation 
of  each,  and  shall  have  the  power  to  remove  any  of 
them  for  sufficient  cause;  they  shall  also  have  power 
to  remove  the  treasurer  whenever  in  their  judgment 
the  safety  of  the  corporation  funds  requires  his  re- 
moval, and  may  appoint  a  treasurer  pro  tempore  to 
continue  in  office  until  the  town  have  opportunity 
to  act  upon  the  subject.  They  shall  further  do  all 
things  enjoined  upon  them  by  said  will,  and  generally 
shall  have  all  the  powers  of  the  town,  had  Secretary 
the  town  chosen  to  exercise  them,  except  JJer'to  be 


the  election  of  trustees,  and  of  the  secre- 

tary  and  treasurer  of  the  corporation;  and  the  secre- 

tary and  treasurer  of  said  corporation,  elected  as 

hereinbefore  provided,  shall  each  take  the  Treag 

oath  prescribed  in  said  will,  and  said  treas-  to  give 

urer  shall  give  bonds  as  therein  required, 

and  they  shall  respectively  perform  all  the  duties 

enjoined  upon  them  by  said  will. 

SECT.  8.   This  act  shall  take  effect  upon  its  ac- 
ceptance by  the  town  of  N.  at  a  town  meet-  Sub-ect  to 

ing  duly  called  and  by  a  vote  duly  passed  acceptance 

by  town 

and  recorded. 

Be  it  enacted,  etc.,  as  follows: 

SECTION  1.  A.  B.,  C.  D.,  E.  F.,  G.  H.,  I.  J.,  K  L., 


618  TESTAMENTARY   FORMS  —  APPENDIX   II 

M.  N.,  O.  P.,  Q.  R.,  S.  T.,  U.  V.,  W.  X.,  Y.  Z., 

Corpora-        V.  A.,  W.  L.,  Q.  B.,  S.  D.,  0.  B.,  U.  C., 

J.  F.,  their  associates  and  successors,  are 
hereby  made  a  corporation  by  the  name  of  the  A. 
Nervine  Asylum,  for  the  purpose  of  establishing 
Name  and  and  maintaining  a  hospital  to  afford  care 

and  relief  to  indigent,  debilitated  and  ner- 
vous persons,  inhabitants  of  this  Commonwealth, 
who  are  not  insane  and  who  may  be  in  need  of  the 
benefit  of  a  curative  institution;  with  all  the  powers 
and  privileges,  and  subject  to  all  the  duties,  restric- 
tions and  liabilities  set  forth  hi  all  general  laws  which 
now  are  or  may  hereafter  be  in  force  and  applicable 
to  such  corporations. 

SECT.  2.  Said  corporation  shall  have  authority  to 
receive,  hold  and  disburse  the  income  of  the  fund 
May  hold  bequeathed  for  the  purposes  for  which  the 
fund  be-  s&[^  corporation  is  created  by  the  will  of 

queathed  * 

for  the  pur-  S.  A.,  late  of  N.,  deceased,  and  any  other 
donations  or  bequests  which  may  be  made 
for  its  benefit,  and  may  hold  for  the  purposes  afore- 
said real  and  personal  estate  to  an  amount  not 
exceeding  three  hundred  thousand  dollars. 

SECT.  3.  The  members  of  said  corporation  shall 
consist  of  the  trustees  under  the  residuary  clause  of 
Members  *he  will  of  the  said  S.  A.,  and  their  succes- 
of  corpora-  sors,  and  the  persons  associated  with  them 
in  this  act  of  incorporation,  of  such  persons 
as  may  at  any  legal  meeting  of  the  corporation  be 
elected  members  by  ballot,  of  such  persons  as  shall, 
with  the  consent  of  the  board  of  managers  hereinafter 


PUBLIC    CHARITIES  619 

referred  to  first  obtained,  pay  to  the  said  trustees  as 
an  addition  to  the  fund  held  by  them  for  the  use  of 
the  corporation,  the  sum  of  one  hundred  dollars  or 
more  each,  and  also  of  such  persons  as  shall,  with 
the  consent  of  the  said  board  of  managers  first  ob- 
tained, pay  into  the  said  fund  the  sum  of  twenty-five 
dollars  each,  as  an  initiation  fee,  and  shall  thereafter 
pay  and  continue  to  pay  into  said  fund  annually  in 
advance  the  sum  of  three  dollars  each;  the  said  last 
mentioned  persons  to  be  members  while  they  shall 
continue  the  said  annual  payment  and  no  longer. 

SECT.  4.  The  officers  of  said  corporation  shall 
consist  of  the  trustees  under  the  will  of  the  said 
S.  A.,  and  their  successors,  a  president,  a  officers  of 
vice-president,  a  treasurer,  a  secretary,  a  corporation 
physician,  a  board  of  not  less  than  nine  managers,  of 
which  the  president,  vice-president,  treasurer  and 
trustees  shall  be  members,  and  three  supervisors, 
who  shall  examine  the  affairs  of  said  corporation  as 
often  as  once  hi  three  months,  and  report  the  general 
result  of  such  examination  annually  in  two  Annual 
of  the  leading  newspapers  of  B.  All  the  report 
said  officers  except  the  said  trustees,  shall  be  annually 
elected  by  ballot  at  meetings  duly  called  for  the  pur- 
pose, and  whenever  a  trustee  shall  die,  resign,  or 
become  incompetent  to  discharge  the  duties  of  his 
trust,  a  successor  shall  be  elected  by  ballot  at  a 
meeting  of  the  corporation  duly  called  for  the  pur- 
pose; but  no  person  so  elected  shall  have  power  or 
authority  to  act  as  a  trustee  until  approved  as  such 
by  the  judge  of  probate  for  the  county  of,  etc. 


620  TESTAMENTARY   FORMS  —  APPENDIX   II 

SECT.  5.  The  said  institution  shall  be  established 
Institution  in  one  °f  the  parts  of  the  city  of  B.,  and 
to  be  es-  shall  be  conducted  and  managed  in  accord- 

tabhshed 

inB.  or       ance  with  the  provisions  of  the  will  of  the 

said  S.  A.,  and  with  such  by-laws  as  may  be 

adopted  by  the  corporation,  not  inconsistent  therewith. 

SECT.  6.   The  said  corporation  shall  have  author- 

ity to  receive  and  care  for  persons  not  indigent, 

May  re-      wno  may  be  otherwise  suitable  for  treat- 

ceive  and 

care  for,       ment  in  its  institution,  at  the  discretion  of 
pensation,    its  board  of  managers,  but  shall  require 


who  are  not  ^e  payment  to  the  corporation  by  such 
indigent  persons  of  reasonable  compensation  there- 
for, the  amount  of  which  shall  be  determined  by  the 
managers. 

SECT.  7.   This  act  shall  take  effect  upon  its  passage. 

Be  it  enacted,  etc.,  as  follows: 

SECTION  1.  A.  B.,  C.  D.,  E.  F.,  G.  H.,  I.  J.,  K.  L., 
M.  N.  and  0.  P.,  all  of  H.,  and  their  successors, 
Corpora-  are  hereby  constituted  a  body  corporate 
under  the  name  of  the  Trustees  of  the  S. 
Academy,  to  be  established  at  H.,  and  to  be  managed 
Name  and  and  conducted  in  accordance  with  the 
purpose  pjan  an(j  provisions  set  forth  in  the  last 

will  of  S.  S.,  late  of  said  H.  And  the  said  trustees 
shall  have  power  and  authority  from  time  to  tune 
Trustees  as  vacancies  mav  occur  in  their  board,  to 
and  other  elect  by  ballot  new  members  to  fill  the 
same;  also  to  elect  a  president,  vice-presi- 
dent, secretary  and  treasurer,  and  such  other  officers 


PUBLIC    CHARITIES  621 

of  said  corporation  as  may  be  found  necessary,  and 
to  declare  the  duties  and  tenures  of  these  respective 
offices;  and  also  to  remove  any  trustee  from  the  same 
corporation,  when  hi  their  judgment  he  shall  be 
rendered  incapable  by  age  or  otherwise  of  discharging 
the  duties  of  his  office,  or  shall  neglect  or  refuse  to 
perform  the  same:  provided,  nevertheless,  that  the 
number  of  members  shall  never  be  greater  than 
eight. 

SECT.   2.   The   said   corporation   shall   have   full 
power  and  authority  to  determine  at  what  tune  and 
places  their  meetings  shall  be  held,  and   Meetin  s 
the  manner  of  notifying  the  trustees  to   of  corpora- 
convene  at  such  meetings ;  and  from  time 
to  tune  to  appoint  a  principal,  preceptress,  and  such 
teachers  or  assistants  as  hi  their  judgment  the  said 
academy  requires,  and  to  determine  the    Principal 
duties  and  compensation  of  each,  and  the   teachers 
tenure  of  their  several  offices;  to  make    etc< 
and  ordain  as  occasion  may  require,  reasonable  rules, 
orders  and  by-laws  not  repugnant  to  the  constitu- 
tion and  laws  of  this  Commonwealth,  with   Ruies  and 
reasonable  penalties  for  the  good  govern-   res"1**0118 
ment  of  said  academy,  and  for  the  regulation  of  their 
own  body;  and  to  determine  and  regulate  the  course 
of  study  in  said  academy:  provided,  nevertheless,  that 
no  corporate  business  shall  be  transacted  at  any 
meeting  unless  five  at  least  of  the  trustees  are  pres- 
ent; and  provided,  further,  that  all  action  under  the 
provisions  of  this  section  shall  be  subject  to  any 
express  directions  and  restrictions  named  hi  said  will. 


622          TESTAMENTARY   FORMS  —  APPENDIX   II 

SECT.  3.  The  said  corporation  shall  be  capable  of 
taking  and  holding  in  fee-simple,  or  any  less  estate, 
Real  and  ^Y  ^*»  Sran*>  bequest,  devise  or  otherwise, 

personal  any  lands,  tenements,  or  other  estate,  real 
estate  '  ' 

or  personal,  and  of  managing,  investing, 

appropriating  and  disposing  of  the  same,  and  of  the 
rents  and  profits  thereof,  in  such  manner  as  shall 
best  promote  the  prosperity  of  said  academy  and 
the  objects  for  which  it  is  founded,  they  conforming 
to  the  will  of  the  founder  and  of  any  donor  or  donors 
in  the  application  of  any  estate  which  has  been,  or 
may  be  given,  devised  or  bequeathed  for  any  object 
connected  with  the  said  academy:  provided,  however, 
the  clear  annual  income  of  all  said  estate  shall  not 
exceed  ten  thousand  dollars. 

SECT.  4.  This  act  shall  take  effect  upon  its  passage. 

Be  it  enacted,  etc.,  as  follows: 

SECTION  1.  A  corporation  is  hereby  created  by 
the  name  of  S.  Academy,  to  take,  hold  and  manage 
Academy  the  estate,  real  and  personal,  devised  and 
bequeathed  to  the  town  of  S.,  by  M.  S., 


in 

to  hold  es-   late  of  N.,  deceased,  and  to  execute  the 

queathed     trusts  upon  which  said  estate  was  given 

y    '   '      to  said  town,  according  to  the  terms  of 

the  will  of  said  deceased,  with  the  powers  and  privi- 

leges, and  subject  to  the  duties,  restrictions  and  lia- 

bilities set  forth  in  all  general  laws  which  now  are 

or  hereafter  may  be  in  force  applicable  to  such 

corporations. 

SECT.   2.   The  corporation  shall   consist  of  five 


PUBLIC   CHARITIES  623 

trustees,  elected  by  said  town  from  among  the  inhab- 
itants thereof,  at  its  annual  meetings  by  Corpora- 
ballot.    Those  heretofore  elected  shall  hold  Sis?  of  five" 


office  as  follows:  A.  B.,  five  years;  C.  D., 
four  years;  E.  F.,  three  years;  G.  H.,  two  the  town 
years;  and  I.  J.,  one  year,  from  the  annual  March 
meeting,  in  the  year  eighteen  hundred  and  seventy- 
one.  At  the  expiration  of  the  term  for  which  any 
trustee  is  elected,  his  successor  shall  be  ,., 

lerm  of 

chosen  for  five  years.     Any  vacancy  by  office,  va- 
death,  resignation,  removal  from  town,  or 
otherwise,  may,  at  any  town  meeting  called  for  that 
purpose,  be  filled  by  election  for  the  remainder  of 
the  term. 

SECT.  3.   Said  corporation  shall  also  take,  hold 
and  manage  the  fund  or  property  given  to  said  town 
by  said  T.  D.,  late  of  C.,  deceased,  and  Tomana  e 
shall  execute  the  trusts  upon  which  said  fund  given 
property  or  fund  was  given  to  said  town 
according  to  the  terms  of  the  instrument  signed  by 
K.  L.  and  M.  N.,  executors  of  the  will  of  said  D. 
and  recorded  in  the  records  of  said  town. 

SECT.  4.   All  the  estate,  funds  and  property,  both 
real  and  personal,  so  given  to  said  town  by  said  S. 
and  D.,   shall  immediately  vest  in  said  TO  keep 
corporation  upon  the  passage  of  this  act.  ^the'two 
The  corporation  shall  keep  the  funds  and  trusts  sep- 
property  of  said  two  trusts  separate  from 
each  other,  and  shall  appropriate  the  income  thereof 
for  the  purposes  for  which  said  trusts  respectively 
were  created;  may  bargain,  sell,  transfer  and  convey 


624  TESTAMENTARY   FORMS  —  APPENDIX   II 

any  of  the  trust  estate,  real  or  personal,  of  either 
trust,  and  reinvest  the  proceeds  thereof  in  other  in- 
vestments from  time  to  tune  as  deemed  best  for  the 
May  use  interest  of  the  trusts.  And  the  corporation 
s!  trust  for  niay  appropriate  from  the  principal  of  the 
school*0  8-  *rust  estate  a  sum  not  exceeding  fifteen 
house  thousand  dollars  in  the  purchase  of  a  lot 
of  land  and  the  erection  of  a  building  thereon,  for 
a  public  school,  as  provided  hi  said  will. 

SECT.  5.   The  trustees  shall  annually  render  to  the 
town  of  S.  accounts  of  the  condition  of  said  trust 

estates  and  funds,  and  the  receipts  and  ex- 
Trustees  to 

render  to     penditures  thereof,  which  shall  be  printed, 
annually  an  and  a  printed  report  also  of  the  condition 
receiSs  and  °^  sa^  school  or  academy,  specifying  the 
expend!-      number  of  scholars  and  their  deportment 
and  proficiency,  with  such  other  informa- 
tion in  relation  thereto  as  they  may  deem  useful 
to  the  town. 
SECT.  6.  This  act  shall  take  effect  upon  its  passage. 

Be  it  enacted,  etc.,  as  follows: 

SECTION  1.  A.  B.,  C.  D.,  E.  F.,  G.  H.,  I.  J.,  K.  L., 
M.  N.,  0.  P.,  Q.  R.,  S.  T.,  U.  V.,  their  associates 
Corpora-  and  successors,  are  hereby  made  a  corpora- 
tion by  the  name  of  "The  Trustees  of  the 
Howard  Funds  in  W.  B.,"  for  the  purpose  of  holding 
hi  trust  and  administering  the  school  fund,  parochial 
Name  and  fund,  and  lecture  fund  provided  for  by 

purpose         the  ^riU  of  the  late  B     B     jj      of  W    3  ^ 

proved  and  allowed  in  the  probate  court,  held  at  P., 


PUBLIC    CHARITIES  625 

in  and  for  the  county  of  P.,  on  the  thirteenth  day  of 
May,  in  the  year  one  thousand  eight  hundred  and 
sixty-seven;  subject  to  all  the  duties,  liabilities  and 
restrictions  set  forth  hi  all  general  laws  which  now 
are  or  may  hereafter  be  in  force  relating  to  such 
corporations. 

SECT.  2.   Said  corporation  is  hereby  authorized 
and  empowered  to  take  and  hold,  for  the  purposes 
therein  set  forth,  all  the  estate  bequeathed  corpora- 
in  trust  by  said  will  to  the  trustees  herein 


named;  and  may  take  and  hold  any  other  hold  real 
estate,   real  or  personal,   which  may  be  sonai 
acquired  by  said  corporation  by  gift,  devise,  € 
purchase    or    otherwise,    for    the    same    purposes: 

provided,  however,  that  the  actual  value  of  , 

Limitation 

the  estate  by  them  held  or  possessed  as 
aforesaid,  shall  not  at  any  one  tune  exceed  the  amount 
of  two  hundred  thousand  dollars. 

SECT.  3.   Said   corporation   shall  cause   accurate 
account  to  be  kept  of  all  the  receipts  and  Accounts 
expenditures   of   each  fund  provided  for  of  receipts 

.  .  ••        .11      •         i  .,.  and  expen- 

in  said  will,   in  the  same   manner  as  if  ditures  to 
each  of  said  funds  was  held  by  a  separate 
corporation. 

SECT.  4.   This  act  shall  take  effect  upon  its  passage. 


INDEX 


ABATEMENT, 

of  legacies,  242  et  seq. 

ABROAD, 

making  will  while,  12. 

ABSENT  LEGATEES, 

provisions  as  to,  17,  273-276. 

ABSOLUTE  ESTATE   IN  PERSONALTY, 
how  created,  155,  161. 

ACCELERATION, 
of  remainder,  189. 

ACCOUNTS, 

directions  to  executor  as  to  filing,  358. 
auditing  of,  359,  389. 
separate,  in  trust  estates,  436. 
of  guardian,  how  kept,  447. 

ACCRUING  SHARES, 

how  affected  by  clause  of  survivorship,  438. 

ACCUMULATION, 

of  income,  202,  400,  401. 

ADEMPTION, 

of  legacies,  238  et  seq.,  263  et  seq.,  303  et  seq. 

ADMINISTRATION, 

general  and  foreign,  14. 

ADMINISTRATOR, 

use  of  word  in  case  of  lapsed  legacies,  293. 
there  must  be,  if  no  executor,  308. 
appointed,  when  minor  is  executor,  310. 
of  deceased  trustee,  duties  of,  445. 

ADOPTED   CHILDREN, 
provisions  as  to,  211,  216. 
effect  of,  on  will,  307. 

627 


628  TESTAMENTARY   FORMS 

ADVANCES, 

provision  as  to,  a  reason  for  making  a  will,  11. 

to  children,  when  to  be  deducted  from  their  shares,  256  et  seq. 

when  cannot  be  barred  by  statute  of  limitations,  257. 

meaning  of  legal  debts  in  reference  to,  258. 

how  to  be  deducted  from  portions  in  trust,  258. 

interest  upon,  258. 

suggestions  as  to,  259. 

not  preventing  lapse,  294. 

AFTER-ACQUIRED  PROPERTY, 
when  it  passes,  59. 

AFTER-BORN  CHILDREN, 
provisions  as  to,  53,  214. 

AGE, 

testamentary,  48  et  seq.,  475. 

AGENTS, 

provisions  as  to  employment  of,  350. 

AGREEMENT, 

to  make  a  will,  143. 

ALIEN, 

may  make  a  will,  50. 

as  devisee  and  legatee,  126. 

executor,  310. 

trustee,  367. 

ALIENATION, 

law  as  to,  in  case  of  real  estate,  15,  16. 
restraint  of,  177. 
of  income,  395,  400. 

ALLOTMENT  OF  REAL  ESTATE, 
in  case  of  devise,  302. 

ALLOWANCES, 
to  widow,  56. 

ALTERATIONS.     (See  OBLITERATIONS  AND  INTERLINEATIONS.) 

ALTERNATIVE, 

termination  of  trust  in,  442. 

AMBIGUITY, 

how  solved  by  punctuation,  129. 

created  by  words  of  locality  and  occupancy,  147. 

ANCILLARY  ADMINISTRATION, 

law  as  to,  14,  15. 


INDEX  629 

"AND."     (See  OR.) 

ANNUALLY, 
use  of,  395. 

ANNUITY, 

when  payable,  291. 

may  be  granted  by  trust  companies,  368. 

when  a  payment  out  of  estate  generally,  401,  402. 

when  out  of  a  fixed  amount  as  principal,  402. 

description  of,  402. 

when  annuitant  should  be  given  entire  net  income,  402. 

to  wife,  403. 

when  apportionable,  429. 

fund  chargeable  with  payment  of,  435. 

termination  of  trust  by,  443. 

ANTE-NUPTIAL  AGREEMENT, 
provisions  as  to,  121. 

ANTICIPATION, 

of  income,  395,  400. 

APPOINTMENT.     (See  POWER  OP  APPOINTMENT.) 

APPORTIONMENT, 
of  income,  etc.,  429. 

ARBITRATION,  SUBMISSION  TO.     (See  COMPROMISE.) 

ARTICLES, 

consumable,  gift  of,  160. 

ASSIGNMENT, 

of  income,  395-400. 

ASSIGNS, 

use  of  word  in  case  of  lapsed  legacies,  293. 

ATTACHMENT, 

of  income,  395-400. 

ATTESTATION.     (See  WITNESS.) 
clauses  of,  470,  476. 

ATTORNEY.  (See  SUGGESTIONS  FOR  WILLS.) 
caution  required  of,  in  drawing  will,  48,  50. 
provisions  as  to  employment  of,  350. 

AUDITORS, 

of  trustees'  accounts,  359,  389. 

AUSTRIA-HUNGARY, 

treaty  with,  as  to  disposing  of  property,  19-21. 

AWARD, 

to  widow,  56. 


630  TESTAMENTARY   FORMS 

B 
BASTARD.     (See  ILLEGITIMATE  CHILDREN.) 

BAVARIA, 

treaty  with,  as  to  disposing  of  property,  21,  22. 

BENEFICIARIES.     (See  TRUST  AND  TRUSTEE.) 

BEQUEATH, 
use  of,  148. 

BLIND  TESTATOR, 
provisions  as  to,  475. 

BODY  OF  TESTATOR, 
disposition  of,  by  will,  81. 

BOLIVIA, 

treaty  with,  as  to  disposing  of  property,  23. 

BOND, 

of  indemnity  to  executor,  when  required,  277. 

executor,  321  et  seq. 

guardian,  447. 

trustee  for  charity  not  required  to  give,  454. 

BONDS, 

specifically  bequeathed,  interest  on,  241. 
held  in  trust,  interest  on,  426. 

BOOKKEEPERS, 

provisions  as  to  employment  of,  350  et  seq. 

BRAZIL, 

treaty  with,  as  to  disposing  of  property,  23,  24. 

BROKER, 

provisions  as  to  employment  of,  350  et  seq. 

BROKERAGE.     (See  COMMISSIONS.) 

BROTHERS  AND  SISTERS, 
meaning  of,  215,  223. 

BRUNSWICK  AND  LUNENBURG 

treaty  with,  as  to  disposition  of  property,  24. 

BURDEN  OF  PROOF, 
in  case  of  will,  467. 

BURIAL, 

directions  as  to,  81,  82. 

BURIAL  LOT.     (See  CEMETERY  LOT.) 


INDEX  631 

BUSINESS  OF  TESTATOR, 

copartnership  articles  as  to,  101. 

provisions  as  to  carrying  on,  after  testator's  decease,  101  et  seq. 


CAPACITY, 

testamentary,  48  et  seq. 

CAPITAL, 

questions  as  to,  410  et  seq. 

CARRIAGES, 

bequest  of,  231. 

CEMETERY   CORPORATIONS, 
when  may  hold  funds  in  trust,  367. 

CEMETERY  LOT, 

provision  as  to,  11,  81-88. 

CESTUI  QUE  TRUST.     (See  TBUST  AND  TRUSTEE.) 
CHARGES  OF  ADMINISTRATION.     (See  COMPENSATION.) 

CHARITABLE  OBJECTS, 

subscriptions  to,  98. 

CHARITABLE  USE.     (See  PUBLIC  CHARITY.) 

CHILDREN.      (See    DESCRIPTION   OP    LEGATEES;     HOMESTEAD; 

POSTHUMOUS  CHILDREN.) 
disinheritance  of,  8,  9,  51  et  seq.,  495. 
expression  of  intention  as  to  9,  51  et  seq. 
after-born,  53,  214. 
estate  tail  in  case  of,  155. 

when  devise  to,  creates  vested  remainder,  190,  191. 
when  contingent  remainder,  191,  192. 
debts  from,  when  regarded  as  advances,  257. 
in  the  case  of  lapsed  legacies,  296. 

CHIROGRAPHY, 

hi  case  of  will,  128. 

CITY, 

as  trustee,  367,  455. 

CLASS, 

in  case  of  perpetuities,  202. 
lapse  in  case  of  fluctuating,  295. 

CLERKS, 

provisions  as  to  employment  of,  350. 


632  TESTAMENTARY   FORMS 

CODICIL, 

definition  of,  143. 

cumulative  or  substitutional  gifts  by,  144,  145. 

affecting  whole  will,  not  advisable,  145. 

should  be  annexed  to  will,  145. 

appointment  of  executors,  etc.,  by,  145. 

revocation  of  legacy  in  will  by,  146,  301. 

commencement  of,  146. 

revocation  of,  303,  304. 

legatee  in  will  should  not  be  witness  to,  472. 

COLOMBIA, 

treaty  with,  as  to  disposing  of  property,  25. 

COMMENCEMENT, 
of  a  will,  137. 
codicil,  146. 

COMMERCIAL  PAPER, 

signing  of,  etc.,  by  executor,  112. 

COMMISSIONS, 

provisions  as  to,  425. 

COMMUNITY  PROPERTY, 
of  husband  and  wife,  55. 

COMPENSATION, 

providing  for  executors,  a  reason  for  making  a  will,  11. 

of  executor,  325. 

legacy  in  lieu  of,  172. 

of  trustee  and  guardian,  371,  449. 

COMPROMISE, 

provisions  as  to,  348. 

CONCURRENT  DEATHS, 

possibility  of,  a  reason  for  making  a  will,  7. 

CONCURRENT  WILLS, 
definitions  of,  142. 

CONDITION, 

when  will  dependent  upon,  140. 

land  charged  with  payment  of  money,  when  upon,  152,  163 

et  seq. 

words  necessary  to  create,  163. 
difference  between  precedent  and  subsequent,  164. 
result  when  it  becomes  impossible,  164. 
performance  of,  165. 
general  points  as  to: 

payments  of  legacies,  166. 


INDEX  633 

CONDITION  (Continued) 

devises  charged  with  payment  of  legacies  for  one's  educa- 
tion, 171. 

legacy  to  executor  or  trustee,  172. 
restraint  of  marriage,  174. 
alienation,  177. 
disputing  will,  178. 
residence,  184. 
gifts  to  servants,  etc.,  185. 
various  conditions,  188. 
application  of  rule  against  perpetuities  to,  206. 

CONDITIONAL  LIMITATION, 
preferable  to  condition,  163-166. 

CONDITIONAL  WILL, 
definition  of,  140. 

CONFIRMATION, 

of  conveyance  by  devise,  118. 

CONFIRMATION  OF  WILL.     (See  CODICIL.) 

CONSENT, 

power  of  sale  dependent  upon,  337,  338. 

CONTEST  OF  WILL.     (See  DISPUTING  WILL.) 
expenses  of,  327. 

CONTINGENT  REMAINDER.     (See  REMAINDEB.) 

CONTRACTS, 

completion  of,  by  executor,  112. 

CONVERSION, 

of  land  into  money  or  money  into  land,  334. 
investments  which  come  to  trustee,  416. 

COPARTNERSHIP.     (See  BUSINESS  OP  TESTATOB.) 

COPYRIGHT, 

renewals  and  extensions  of,  77. 
as  wasting  investment,  415. 

CORPORATION, 

devise  or  bequest  to,  126. 
joint  tenancy  in  case  of,  157. 
lapse  in  case  of  dissolution  of,  294. 
may  be  executor,  313. 
guardian,  446. 

member  of,  as  witness  to  a  will  in  which  property  is  bequeathed 
to,  471,  472. 

COUNSEL.     (See  ATTORNEY.) 


634  TESTAMENTARY   FORMS 

COUSIN, 

meaning  of,  215. 

CREDITOR, 

legacy  to,  267,  268. 
may  be  executor,  311. 
as  witness  to  will,  471. 

CREMATION, 

directions  as  to,  81. 

CUMULATIVE  LEGACIES, 
provisions  as  to,  144. 

CURTESY, 

of  husband,  56. 

none  in  a  vested  remainder,  61. 

CUSTODY, 
of  will,  479. 

CY-PRES.     (See  PUBLIC  CHAKITY.) 


D 

DEAD  BODY.     (See  BODY  OF  TESTATOR.) 

DEAF  AND  DUMB  TESTATOR, 
provisions  as  to,  475. 

DEBTOR, 

legacy  to,  253  et  seq. 
may  be  executor,  311. 

DEBTS, 

general  rules  as  to  payment  of,  269  et  seq.,  329  et  seq. 

DECLARATION  OF  TRUST, 
provisions  as  to,  63. 

DEFECTS, 

may  be  supplied,  234. 

DEFICIENCY  OF  ASSETS.    (See  ABATEMENT.) 

DELEGATION, 
of  trust,  442. 

DEMONSTRATIVE  LEGACY, 

paid  from  general  assets,  though  fund  fails,  238,  239. 
when  it  abates,  249. 

DEPENDENT  RELATIVE  REVOCATION.     (See  REVOCATION.) 


INDEX  635 


DESCENDANTS, 

include  what,  217,  224. 


DESCENT, 
title  by,  3. 

in  case  of  real  estate,  15. 
when  heir  takes  by,  and  not  by  purchase,  117,  308. 

DESCRIPTION     OF     LEGATEES     AND     LEGACIES.       (See 
SPECIFIC  DEVISES  AND  LEGACIES;    LIFE  ESTATE  IN 
PERSONALTY.) 
Of  Legatees, 

children,  declaring  who  are,  4. 
in  a  class,  210-213. 
en  ventre  sa  mere,  210. 
exclusion  of,  etc.,  209,  210. 
posthumous,  211. 

nephews  and  nieces,  meaning  of,  211. 
gift  direct  to  wife  and  children,  211-213. 
who  take  under  gift  to  children,  211-213. 
plurality  of  children,  213. 
gifts  to  youngest  or  oldest  sons,  214. 
children  at  the  date  of  the  will,  214. 

at  a  period  beyond  testator's  death,  214. 
after-born  children,  53,  214. 
"heirs"  may  mean  children,  215. 
"issue"  may  be  limited  to  children,  215,  217. 
meaning  of  cousin,  215. 
adopted  children,  216. 
illegitimate  children,  216. 
meaning  of  descendants,  217,  224,  225. 
when  children  take  per  capita  or  per  stirpes,  218,  219. 
when  heirs  to  be  applied  per  stirpes  or  per  capita,  218, 

219. 
meaning  of  "heirs  of  my  children,"  220. 

"heirs"  and  "heirs-at-law,"  220,  222. 
"next  of  kin,"  222-224. 
"family,"  225-226. 
"relations"  or  "relatives,"  227. 
"legal  representatives,"  227. 
"survivors,"  227. 
"husband"  and  "wife,"  228. 
"executors"  and  "administrators,"  228. 
Of  Legacies, 

"my  property,"  "my  estate,"  etc.,  include  what,  228. 
wearing  apparel,  watches,  jewelry,  furniture,  etc.,  229  et  seq. 
goods,  etc.,  at  a  particular  place,  233. 
"my  chest  and  its  contents,"  233. 


636  TESTAMENTARY   FORMS 

DESCRIPTION  OF  LEGATEES  AND  LEGACIES  (Continued) 
"interest  in  a  factory,"  234. 
"money,"  234. 
construction  of  intent,  234. 

DESCRIPTION  OF  REAL  ESTATE.    (See  TRUST  AND  TRUSTEE.) 
accuracy  in,  desirable,  147. 
words  of  locality  and  occupancy  and  general  names  should  be 

avoided  in,  147. 
Fee-Simple, 

proper  words  to  give,  148. 

whether  life  estate  or  fee,  148. 

fixtures  when  part  of  freehold,  150. 

devise  to  one  and  in  case  of  his  decease  to  another,  151. 
where  testator  is  mortgagee,  151,  152. 

mortgagor,  152. 
charged  with  the  payment  of  money,  152. 

application  of  the  purchase  money,  153. 
Fee-Tail, 

how  barred,  154. 

liable  for  payment  of  debts,  154. 

how  created,  155. 

estate  limited  to  take  effect  after,  is  a  remainder,  189. 
Joint  Tenancy,  Tenancy  by  the  Entirety,  and  Tenancy  in  Common, 

how  created,  156-158. 

exact  interest  should  be  designated,  157. 

survivorship  in  case  of,  158. 

legacy  given  to  two  or  more,  157,  158. 

no  joint  tenancy  in  case  of  corporations,  157. 
Estate  for  Life  or  for  Years, 

to  one  for  life,  then  to  heirs  in  fee,  159. 

debts  and  legacies  charged  upon,  159. 

power  to  mortgage,  159. 

taxation  of,  159. 

damages  in  laying  out  ways,  etc.,  159. 

terminable  by  sale  under  power,  159. 

removal  of  fixtures  in  case  of,  159. 

leases  in  case  of,  159. 

when  specific,  236. 

DESTROYED  WILL, 
provisions  as  to,  480. 

DEVISE    AND    LEGACY.     (See  CONDITION;    PERPETUITY;  RE- 
SIDUARY LEGATEE;  SPECIFIC  DEVISES  AND  LEGACIES.) 
"devise"  proper  word  to  give  real  estate,  148. 
What  May  Be  Bequeathed  or  Devised, 
all  testator's  estate,  59. 


INDEX  637 

DEVISE   AND   LEGACY  (Continued) 

after-acquired  property,  59. 

contingent  and  vested  interests,  60. 

property  testator  does  not  own,  61. 
mingled  with  testator's,  62. 
of  others  in  testator's  possession,  62. 

trust  deeds,  62. 

gifts  mortis  causa,  66. 

good-will  of  a  business,  66. 

trade  secret,  67. 

property  subject  to  power  of  appointment,  68  et  seq. 

rights  as  fellow  or  patron,  76. 

policies  of  insurance,  77.  • 

heirlooms,  78. 

actions  which  survive,  80. 

testator's  body,  gravestones,  etc.,  81. 

residence  of  testator,  88  et  seq. 

real  estate  subject  to  mortgage,  91  et  seq. 

personal  estate  subject  to  incumbrances,  96. 

joint  real  and  personal  property,  99. 

business  and  partnership  interests,  101  et  seq. 

power  to  executor  to  sign  notes,  112. 

pew,  113. 

opera  box,  114. 

dumb  animals,  114. 

manuscripts,  letters,  etc.,  115. 

confirmation  of  conveyances,  118. 

money  for  purchase  of  tokens  of  remembrance,  120. 

confirmation  of  ante-nuptial  agreement,  121  et  seq. 
What  May  not  Be  Bequeathed  or  Devised, 

right  of  continuance  of  copyright,  77. 

an  estate  tail,  116. 

an  estate  of  homestead,  116. 

devise  or  legacy  to  subscribing  witness,  116. 

to  husband  or  wife  of  subscribing  witness,  116. 

insurance  for  widow  and  child  of  assured,  77. 

devise  to  heir  of  estate  to  which  he  is  entitled  by  descent,  117. 

illegal  gifts,  119. 

repugnant  restrictions,  494. 
Legacy  to  a  Debtor, 

not  intended  to  forgive  debt  in  addition  to  legacy,  253. 

how  debt  deducted  from  legacy,  253. 

when  cannot  be  barred  by  statute  of  limitations,  253,  254. 

rules  as  to  advances,  256  et  seq. 

gifts  as  satisfaction  of  legacy,  263-267. 
Legacy  to  a  Creditor, 

generally  regarded  as  a  bounty,  267. 

when  in  satisfaction  of  debt,  267. 


638  TESTAMENTARY   FORMS 

DEVISE  AND   LEGACY  (Continued) 
Payment  of  Legacies, 

general  provisions  as  to,  269-272. 

payable  in  one  year,  273. 

when  statute  of  limitations  no  defence  to  an  action  for  a 

legacy,  273. 

absent  legatees,  273-276. 
liability  of  real  estate  to  pay  legacies,  276. 
action  for  legacy,  277. 

when  legatee  must  give  refunding  bond,  277. 
insertion  of  provisions  in  wills  as  to  payment  of  legacies,  278. 
distribution  in  kind,  281. 
currency  in  which  to  be  paid,  284-287. 
legacy  taxes,  287. 
Interest  upon  Legacies, 

in  case  of  advances,  258,  259. 

when  payable  upon  pecuniary  legacies,  289. 

exception  in  case  of  minor  children  and  widow,  289,  290. 

when  exception  in  case  of  minor  child  does  not  apply,  290. 

on  legacies  payable  at  a  certain  time,  290. 

rights  of  residuary  legatee  as  to,  291. 

statutory  provisions  as  to,  291. 

upon  specific  legacies,  241,  291. 

DEVISEE  AND  LEGATEE, 
Who  May  Be, 

all  persons,  except  those  forbidden,  125. 
married  woman,  125. 
alien,  126. 

unincorporated  societies,  126. 
corporations,  126. 
municipal  corporations,  127. 
United  States,  127. 
when  devisee  entitled  to  fixtures,  150. 

bound  to  see  to  payments  of  money  charged  upon  devise, 

91,  96. 
entitled  to  rents  and  profits  of  real  estate,  334. 

DIES  WITHOUT  ISSUE,  ETC., 
meaning  of,  155. 

DIRECTIONS.     (See  RECOMMENDATIONS.) 

DISCRETION, 

conferred  on  executors  and  trustees,  343,  381,  383. 
as  to  adding  income  to  principal,  400. 
termination  of  trust  in  the  exercise  of,  441. 
in  the  case  of  public  charities,  454. 

DISINHERITANCE, 

of  children,  8,  9,  51  et  seq.,  495. 


INDEX  639 


DISPUTING  WILL, 

provisions  as  to,  178. 

DISTRIBUTION, 
in  kind,  281. 

power  of  sale  not  authorizing,  336. 
power  of  sale  authorizing,  337. 

DIVIDENDS, 

when  income  or  principal,  412  et  seq. 
when  apportionable,  429. 

DIVORCE, 

revoking  will,  307. 

DOCUMENTS, 

disposition  of,  by  will,  115. 

how  incorporated  in  will,  129,  472. 

DOMICILE, 

of  testator  in  making  will,  12. 

change  of,  after  making  will,  13,  307. 

declaration  of,  in  will,  14. 

as  affecting  trust,  370. 

taxation  of  trust  when  determined  by,  370,  432. 

trustee  not  residing  in  testator's,  364. 

of  beneficiary,  as  affecting  public  charity,  453. 

when  it  makes  creation  of  trust  imperative,  491. 

DONATIO  CAUSA  MORTIS, 

testator  should  be  informed  of,  66. 

DOWER.     (See  WIDOW.) 

as  a  reason  for  making  a  will,  5. 
provisions  as  to,  56. 
none  in  a  vested  remainder,  60,  61. 
legacy  in  lieu  of,  when  preferred,  290. 

DUMB  ANIMALS, 

provisions  as  to,  114. 

DUPLICATE   WILLS, 
revocation  of,  303. 
execution  of,  476. 

E 
EDUCATION.     (See  MAINTENANCE  AND  SUPPORT.) 

ELECTION, 

doctrine  of,  61. 
to  waive  will,  61. 


640  TESTAMENTARY   FORMS 

EMPLOYEES, 
gifts  to,  185. 

ENCUMBRANCES.     (See  INCTTMBRANCES.) 
EQUITABLE  CONVERSION.     (See  CONVERSION.) 
ERASURE.     (See  OBLITERATIONS  AND  INTERLINEATIONS.) 

ESTATE    FOR    LIFE    OR    FOR    YEARS.     (See  DESCRIPTION 
OF  REAL  ESTATE.) 

ESTATE    TAIL.     (See  DESCRIPTION  OP  REAL  ESTATE.) 
not  the  subject  of  devise,  116. 

ESTOPPEL.     (See  ELECTION.) 

in  case  of  bond  to  pay  debts  and  legacies,  322. 

EVIDENCE.     (See  FAC-SIMILE.) 

as  to  testator's  mental  condition,  48. 

to  show  whom  the  testator  intended  to  describe,  209. 

EXCLUSION, 

of  certain  persons  as  legatees,  209,  210. 

EXECUTION    OF    WILL.     (See  ATTESTATION;   RE-EXECUTION; 

WITNESS.) 

conformably  to  law  of  foreign  jurisdictions,  17,  466. 
seal  should  be  affixed,  466. 
obliterations  and  interlineations,  300,  467,  468. 
on  the  Lord's  day,  468. 
must  be  signed  by  testator,  or  by  some  one  in  his  presence  and  by 

his  direction,  469,  470. 
general  rules  as  to,  470. 

EXECUTOR, 

will  merely  appointing,  good,  3,  9,  309. 

estate  not  liable  for  tort  committed  by,  102. 

right  of,  to  fixtures,  150. 

legacy  to,  172. 

carrying  on  of  testator's  business  by,  101  et  seq.,  420  et  seq. 

signing,  etc.,  notes  by,  112  et  seq.,  333. 

if  none  named,  must  be  an  administrator,  308. 

in  his  own  wrong,  308. 

in  case  of  partial  intestacy,  309. 

delegation  of  power  to  name,  310. 

appointment  of,  may  be  qualified,  18,  309. 

conditional,  309,  310. 
may  be  trustee,  369  et  seq. 
of  deceased  trustee,  duties  of,  445. 
as  witness  to  a  will,  471,  472. 
use  of  word  in  case  of  lapsed  legacies,  293. 


INDEX  641 

EXECUTOR  (Continued) 
Who  May  Be, 

several  persons  in  several  degrees,  309. 

a  minor,  310. 

a  single  woman,  310. 

a  married  woman,  310. 

aliens  and  non-residents,  310. 

unnamed  person,  311. 

a  creditor,  311. 

a  debtor,  311. 

a  partner,  312. 

a  trust  company  or  other  corporation,  313. 

anyone  capable  of  making  a  will,  313. 

executor  of  executor  not  to  administer  on  first  estate,  313. 

appointment  of,  313  et  seq. 

new,  313,  318  et  seq. 
Bond, 

executor  generally  required  to  give,  321. 

exemption  from  giving  sureties,  321. 

whether  substituted  executors  included,  321. 

surety  companies  as  sureties,  321. 

residuary  legatee,  when  executor,  to  give  bond  to  pay  debts 
and  legacies,  322. 

danger  in  giving  such  bond,  322. 

direction  as  to  inventory  and  account,  322. 

separate  or  joint  bonds,  323. 

liability  thereon,  323  et  seq. 
Charges  of  Administration, 

expenses  and  reasonable  compensation  allowed,  325. 

directions  as  to,  325. 

legacy  in  lieu  of  compensation,  325. 

expenses  of  contest,  327. 
Directions  that  a  Majority  of  Executors  May  Act, 

provisions  as  to,  328. 
Just  Debts  and  Funeral  Expenses, 

executor  need  not  be  authorized  to  pay,  329,  330. 

special  directions  as  to,  330  et  seq. 
Power  to  Sett,  Mortgage,  Lease,  etc., 

different  kinds  of  powers,  333,  334. 

when  heirs  or  devisees  entitled  to  rents,  until  estate  sold, 
334. 

when  executor  must  account  for  income,  334. 

conversion  of  real  into  personal  or  of  personal  into  real 
estate,  334. 

what  powers  of  sale  do  or  do  not  survive,  336,  337. 

power  which  does  not  authorize  partition,  336. 

how  power  should  be  worded  so  as  to  include  successors,  336, 
377. 


642  TESTAMENTARY   FORMS 

EXECUTOR  (Continued) 

repetition  of  power,  337. 

power  to  distribute  proceeds  among  remainder-men,  337. 
dependent  upon  consent,  337. 

application  of  purchase  money,  338. 

receipts  of  executors  and  trustees,  338. 

power  to  sell  does  not  authorize  mortgage,  338. 
as  to  interests  held  in  common,  342. 
to  lease,  343. 

discretionary  powers,  343. 
Purchase  of  Trust  Property  by  Executors  and  Trustees, 

only  when  authorized  by  will,  344. 
Directions  as  to  Insurance, 

provisions  as  to,  345. 
Taxation  of  Estate  of  Deceased  Person, 

provisions  as  to,  347. 
Compromise  and  Arbitration, 

provisions  as  to,  348. 
Employment  of  Attorneys,  Agents,  etc., 

provisions  as  to,  350. 
Keeping  Records, 

provisions  as  to,  353. 
Powers  of  Attorney, 

provisions  as  to,  355. 
Voting  Shares, 

instructions  as  to,  356-358. 
No  Inventory  or  Accounting, 

provisions  as  to,  358. 
Auditing  Accounts  and  Examining  Securities, 

provisions  as  to,  359. 

EXECUTORS  AND  ADMINISTRATORS, 
meaning  of,  in  the  case  of  legacies,  228. 

EXECUTORY  DEVISE.     (See  PERPETUITY.) 
by  will,  60. 

not  after  an  estate  tail,  189. 
sale  of  estates  subject  to,  192. 
two  kinds  of,  193. 
indestructible  by  first  taker,  193. 

EXONERATION, 

of  mortgaged  estate,  rule  as  to,  91,  96,  241. 

EXPENSES, 

of  contest  of  will,  327. 


INDEX  643 

F 
FAC-SIMILE, 

of  will,  admitted  in  evidence,  129. 

FAMILY, 

residence  as  a  home  for,  88,  89 
includes  what,  225,  226. 

FARM, 

devise  of,  specific,  236. 

FEEBLEMINDED  TESTATOR, 
provisions  as  to,  475. 

FEE  SIMPLE.     (See  DESCRIPTION  OF  REAL  ESTATE.) 
FEE-TAIL.    (See  ESTATE  TAIL.) 

FELLOW, 

bequest  of  rights  of,  76. 

FEME  COVERT.    (See  HUSBAND  AND  WIFE;  MARRIED  WOMAN.) 
FEME  SOLE.     (See  SINGLE  WOMAN.) 

FIXTURES, 

as  between  executor  and  devisee,  150. 

FOREIGN  WILLS, 
effect  of,  14. 

FORMS  OF  WILLS, 

abatement  of  legacies,  243. 

absent  legatees,  274. 

accounts,  filing  of,  323,  358. 

acts  of  incorporation,  595-625. 

ademption  of  specific  legacies,  etc.,  239. 

advances,  260. 

agents,  etc.,  employment  of,  351. 

allotment  of  real  estate  to  residuary  legatee,  302. 

annuities,  368,  403-405,  443. 

ante-nuptial  agreements,  121-124. 

application  of  will,  limiting,  16. 

apportionment  of  interest,  241,  430. 

arbitration,  348. 

attestation  clauses,  475,  477  et  seq.,  504,  508. 

attorneys,  etc.,  employment  of,  351. 

auditing  accounts  and  examining  securities,  390. 

bonds,  interest  on,  427. 

borrowing  money,  112,  333. 

burial  lot,  84  et  seq. 

business,  carrying  on  of,  etc.,  105  et  seq.,  421,  423. 


644  TESTAMENTARY   FORMS 

FORMS   OF   WILLS  (Continued) 

business,  incorporation  of,  105  et  seq. 
cash  and  stock  dividends,  413. 
cemetery  lot,  84  et  seq. 
charges  on  real  estate,  153. 
charitable  gifts,  457-464. 
charitable  objects,  subscription  to,  99. 
children  and  issue  of  deceased  children. 

adopted,  216. 

after-born,  53. 

disinheriting,  8. 

inequalities  as  to,  53. 

naming,  4,  5,  52. 
clerks,  etc.,  employment  of,  351. 
commencement  of  codicil,  146. 

will,  138. 

commercial  paper,  signing  etc.,  112,  333. 
commissions,  payment  of,  425. 
community  property,  55. 
compensation  of  executors,  etc.,  325. 
compromise  and  arbitration,  348. 
concurrent  wills,  142. 
conditions,  legacies  given  on,  167  et  seq. 
confirming  conveyances,  118. 
contest,  expenses  of,  327. 
contracts,  completion  of,  112. 
conversion,  335. 
cremation,  82. 
cumulative  legacies,  144. 
debts,  statement  as  to,  331. 
delegating  and  revoking  trust,  442. 
descent,  estate  given  according  to,  118. 
devise  of  fixtures,  151. 

for  life  with  power  to  sell,  149. 

without  a  trustee,  170. 
discretionary  powers,  343. 
discretion  in  terminating  trust,  441. 
disinheriting  children,  etc.,  8. 
disputing  will,  condition  as  to,  179  et  seq. 
distributive  share  of  widow,  56. 
documents,  provisions  as  to,  115. 
domicile,  declaration  of,  14. 
dower,  provisions  in  lieu  of,  56. 
dumb  animals,  114. 
employees,  gifts  to,  186  et  seq. 
erecting  buildings  and  making  improvements,  389. 
exclusion  of  certain  persons,  210. 
executors,  appointment  of,  314. 


INDEX  645 

FORMS  OF  WILLS  (Continued) 

arbitration  by,  348. 

attorneys,  etc.,  employment  of,  351. 

auditing  accounts  of,  390. 

authority  of,  to  lease,  343. 

compensation  of,  325. 

compromises  by,  348. 

discretionary  powers  of,  343. 

insurance  by,  346. 

keeping  records  by,  354. 

legacies  to,  173. 

liability  of,  324. 

majority  of,  to  act,  328. 

new,  318. 

powers  of  attorney  by,  355. 

powers  of  sale  to,  339  et  seq. 

purchase  of  trust  property  by,  345. 

receipts  of,  339. 

voting  shares,  357. 

exoneration  of  specific  legacies  and  devises,  93  et  seq. 
farming  tools,  wagons,  etc.,  bequest  of,  231  et  seq. 
fellow  or  patron,  rights  of,  76. 
furniture,  bequest  of,  231  et  seq. 
grandchildren,  inequalities  as  to,  53. 
gravestones,  provisions  as  to,  84  et  seq. 
guardians,  appointment  of,  449. 
heirlooms,  provisions  as  to,  78. 
illegal  gifts,  119. 
income,  alienation  of,  396-400. 

annuities,  368,  403-405,  443. 

anticipation  of,  396-400. 

apportionment  of,  241,  430. 

attachment  of,  396-400. 

capitalization  of,  400. 

for  education  and  support,  407—409. 

for  sole  and  separate  use,  431. 

payment  of,  394. 

incorporation  of  business,  105  et  seq. 
charities,  595-625. 
incumbrances,  payment  of,  93-97. 
indefinite  bequests,  120. 
inheritance  taxes,  288. 
insurance,  346. 
interest  upon  legacies,  291. 

bonds,  427. 

in  testimonium  clauses,  468,  476,  504,  508. 
inventory,  filing  of,  323,  358. 
investments  and  reinvestments,  384-389. 


646  TESTAMENTARY   FORMS 

FORMS   OF   WILLS  (Continued) 
jewelry,  bequest  of,  229. 
keeping  records,  provisions  as  to,  354. 
keepsakes,  233. 
lapsed  legacies,  297. 
leases,  160,  343,  381. 
legacy  to  creditor,  268. 

debtor,  254  et  al. 
taxes,  288. 
letters,  115. 

liability  of  executors  and  trustees,  324. 
liens,  mortgages,  etc.,  93  et  seq. 
life  estate,  without  trustee,  161,  162,  170. 
literary  executor,  116. 
loans  to  partnership,  105  et  seq. 
manuscripts,  115. 
marriage,  restraint  of,  175. 
mementos,  233. 
memorials,  121. 
monuments,  84  et  seq. 
mortgage,  power  to,  381. 
mortgages  and  liens,  93  et  seq. 

foreclosure  of,  389. 
papers,  115. 

partition,  100,  382,  440. 

partnership,  carrying  on  etc.,  105  et  seq.,  421,  423. 
patron,  rights  of,  76. 
payment  of  legacies,  279. 
personal  effects,  78,  229. 
plurality  of  persons,  gifts  to,  213. 
powers  of  appointment,  70  et  seq.,  433. 

attorney,  355. 

sale,  etc.,  339,  381. 

promissory  notes,  signing,  etc.,  112,  333. 
property  of  others,  62. 
public  charities,  457-464. 
purchase  money,  application  of,  339. 
ratifying  conveyance,  118. 
rebuilding,  410. 

receipts  of  executors  and  trustees,  339. 
rents  and  profits,  170. 
requests,  78,  131  et  seq. 
residence  as  home,  90,  91. 
satisfaction  of  legacy,  gifts  as,  266. 
servants,  gifts  to,  186  et  seq. 
shares,  estates  given  in,  250,  251. 
sole  and  separate  use,  125,  431. 
specific  legacies  and  devises,  237. 


INDEX  647 


FORMS   OF   WILLS  (Continued) 
stable  appurtenances,  231  et  seq. 
stock  dividends,  413. 
subscriptions  to  charitable  objects,  99. 
substitutional  gifts,  144. 
survivorship  on  termination  of  trust,  437. 
termination  of  trust  on  death,  etc.,  of  trustee,  443. 
testator's  body,  82. 
thirds  of  widow,  56. 
tokens  of  remembrance,  121. 
tombstone,  84  et  seq. 
trust,  declaration  of,  64. 
trustees,  appointment  of,  314,  366. 

arbitration  by,  348. 

attorneys,  employment  of,  351. 

auditing  accounts  of,  390. 

authority  to  erect  buildings,  389. 

authority  to  lease,  381. 

compensation  of,  325,  371. 

compromises  by,  348. 

discretionary  powers  of  343,  441. 

disinterested,  366. 

filling  vacancies  in  board  of,  374  et  seq. 

insurance  by,  346. 

investments  by,  384  et  seq. 

keeping  records  by,  354. 

legacies  to,  173. 

liability  of,  324. 

majority  to  act,  328. 

new,  318,  374  et  seq. 

partition  by,  382. 

powers  of  attorney  by,  355. 

powers  of  sale  to,  339  et  seq.,  381. 

purchase  of  trust  property  by,  345. 

receipts  of,  339. 

voting  shares  by,  357. 
void  sifts  and  devises,  119. 
voting  shares,  357. 
wasting  investments,  418,  422-425. 
watches,  229. 
wearing  apparel,  229. 
wills,  complete  forms  of,  497-593. 

FOUNDATION, 

in  case  of  public  charities,  463. 

FRANCE, 

treaty  with,  as  to  disposing  of  property,  26,  27. 


648  TESTAMENTARY   FORMS 

FRAUD.     (See  EVIDENCE.) 
in  case  of  will,  48. 

FUNERAL  EXPENSES, 
payment  of,  330. 

when  advisable  to  provide  for,  where  income  is  given  for  main- 
tenance and  support,  407. 

FURNITURE.     (See  HOUSEHOLD  FURNITURE.) 

G 

GENERAL  DESCRIPTION, 
how  not  to  be  limited,  147. 

GIVE, 

applies  to  both  real  and  personal  estate,  148. 

GOODS  AND  CHATTELS.    (See  HOUSEHOLD  FURNITURE.) 

GOOD-WILL, 

of  business,  bequest  of,  66. 

GRAMMATICAL  REQUIREMENTS, 
in  case  of  will,  493,  494. 

GRANDCHILDREN, 

provisions  as  to,  190,  211,  212. 

GREAT  BRITAIN, 

treaty  with,  as  to  disposing  of  property,  27-31. 

GUARDIAN, 

will  merely  appointing,  good,  445. 

testamentary  appointment  of,  446. 

who  may  be,  446,  447. 

bond  of,  447. 

duties  of,  447  et  seq. 

account  of,  447. 

not  invested  with  legal  title,  447. 

sales  by,  448. 

advantage  of  making  guardian  trustee,  448. 

compensation  of,  371  et  seq. 

investments  of,  383  et  seq. 

compromises  by,  348  et  seq. 

GUATEMALA, 

treaty  with,  as  to  disposing  of  property,  31. 


INDEX  649 

H 

HANSEATIC  REPUBLICS, 

treaty  with,  as  to  disposing  of  property,  32. 

HEIRLOOMS, 

provisions  as  to  bequeathing,  78. 

HEIRS, 

use  of,  in  executing  power  of  appointment,  69. 
devise  to,  of  one  living,  void,  117. 

estate  to  which  entitled  by  descent,  void,  117. 
expectant,  how  defeated,  5. 
should  be  used  hi  devise,  though  not  necessary  to  give  fee,  148. 

363. 
when  devise  to,  creates  vested  remainder,  190,  191. 

contingent  remainder,  191,  192. 
may  mean  children,  215. 
when  they  take  per  stirpes  or  per  capita,  219. 
"heirs"  and  "heirs-at-law,"  220,  222. 
when  not  to  be  construed  as  next  of  kin,  220. 
use  of,  in  case  of  lapsed  legacies,  293. 
devise  to,  of  estate  to  which  entitled  by  descent,  308. 
when  entitled  to  rents  and  profits  of  real  estate,  334. 
when  property  more  than  sufficient  for  trust,  444,  445. 
entitled  to  estate  in  case  of  resulting  trust,  444. 
when  estate  descends  to,  subject  to  trust  for  public  charity,  454. 
as  witnesses  to  will,  471. 

HEIRS  OF  THE  BODY.     (See  ESTATE  TAIL.) 

HESSE, 

treaty  with,  as  to  disposing  of  property,  33. 

HOLOGRAPHIC  WILL, 
definition  of,  139. 

HOME.     (See  RESIDENCE.) 

HOMESTEAD, 

estate  of,  cannot  be  affected  by  devise,  116. 

description  of,  147. 

whether  trustees  have  fee  in,  362. 

HONDURAS, 

treaty  with,  as  to  disposing  of  property,  33. 

HORSES,  ETC., 
bequest  of,  231. 


650  TESTAMENTARY   FORMS 

HOUSEHOLD  FURNITURE, 

susceptible  of  liberal  construction,  230. 
provisions  as  to,  230  et  seq.,  362. 

HUSBAND      AND      WIFE.     (See   MARRIED   MAN;     MARRIED 

WOMAN.) 

community  property  of,  55. 
waiver  of  will  by,  55. 
as  tenants  by  the  entirety,  156. 
mention  of,  by  name,  228. 
advances  to  husband  to  be  deducted  from  wife's  legacy,  257. 


I 

ILLEGAL  GIFTS, 

provisions  as  to,  119. 

ILLEGITIMATE  CHILDREN, 
provisions  as  to,  211,  216. 

ILLITERATE  TESTATOR, 
provisions  as  to,  475. 

INCOME.     (See  ANNUITY;  APPORTIONMENT;  TRUST  AND  TRUSTEE.) 
meaning  of,  393. 

of  property  in  trust,  when  payable,  393. 
special  provisions, as  to,  394. 

"monthly,"  "quarterly,"  "semi-annually,"  "annually,"  395. 
anticipation,  alienation,  assignment,  and  attachment  of,  395-400. 
discretion  as  to  adding  to  principal,  400. 
use  of,  to  discharge  mortgages,  etc.,  401. 
for  education,  maintenance,  and  support,  406. 
insurance,  repairs,  and  taxes,  when  charged  upon,  410. 
when  extra  dividends  are,  412. 
wasting  investments,  415  et  seq. 
when  apportionable,  429. 

INCORPORATION, 

of  trustees,  465,  595  et  seq. 

INCUMBRANCES, 

discharge  of,  91-96,  241,  401. 

INDEFINITE   BEQUESTS, 
provisions  as  to,  120. 

INDEMNITY, 
bond  of,  278. 

INFANTS, 

when  interest  on  legacy  to,  payable,  289,  290. 
may  be  executors,  310. 


INDEX  651 

INFANTS  (Continued) 
as  trustees,  367. 
guardianship  of,  445  et  seq. 

INSTALMENTS, 

termination  of  trust  by,  435. 

INSTRUCTIONS.     (See  RECOMMENDATIONS.) 

INSURANCE, 

provisions  as  to,  a  reason  for  making  a  will,  10. 
policies  of,  when  and  when  not  subject  of  bequest,  77. 
directions  as  to,  345. 
by  tenant  for  life  and  remainder-man,  410. 

INTENT, 

in  revoking  wills,  304. 

when  not  defeated  by  grammatical  construction,  etc.,  493. 

INTEREST  UPON  LEGACIES.     (See  APPORTIONMENT;  DEVISE 
AND  LEGACY.) 

INTERLINEATIONS.      (See   OBLITERATIONS   AND   INTERLINEA- 
TIONS.) 

INTESTACY, 

a  reason  for  making  a  will,  1  et  seq. 
partial,  not  favored,  148,  309. 

IN  TESTIMONIUM  CLAUSE, 
wording  of,  468,  470,  476. 

INVENTORY, 

legacy  dependent  upon  amount  of,  188. 
directions  to  executors  as  to  filing,  322,  358. 

INVESTMENTS.     (See  WASTING  INVESTMENTS.) 
by  executors  and  trustees,  333,  383,  et  seq. 

ISSUE, 

of  a  deceased  child,  how  disinherited,  51  et  seq. 

inequality  of  treatment  of,  53. 
devise  determinable  in  event  of  not  leaving,  155. 
devise  to  one  and  his  issue  creates  estate  tail,  155. 
limited  to  children,  215. 

descendants,  217. 
in  case  of  lapsed  legacies,  296. 

ITALY, 

treaty  with,  as  to  disposing  of  property,  34. 


652  TESTAMENTARY   FORMS 

J 
JAPAN, 

treaty  with,  as  to  disposing  of  property,  35. 

JEWELRY, 

bequest  of,  229. 

JOINT  TENANCY  AND  TENANCY  IN  COMMON, 
when  devise  by  joint  tenant  void,  99. 
provisions  as  to  partition,  100. 
language  necessary  to  create,  156,  301. 
designation  of  exact  interest  advisable,  156. 
in  case  of  corporations,  157. 
legacy  to  two  or  more,  157,  158. 
lapse  in  case  of,  295. 

when  power  of  sale  to  joint  tenants  survives,  336. 
sale  by  executor  of  testator's  interest,  342. 
when  remainder-men  take  as  tenants  in  common,  440. 

JOINT  WILL, 

definition  of,  139. 

JUDGE  OF  PROBATE, 

when  acts  under  will  in  appointing  new  trustee,  373. 

JURISDICTION, 

as  affecting  execution  of  power  of  appointment,  69. 

JURISDICTION,  FOREIGN, 
effect  of  will  on,  14  et  seq. 

K 
KEEPSAKES, 

selection  of,  232. 

KONGO, 

treaty  with,  as  to  disposing  of  property,  35. 


LANGUAGE, 
of  will,  128. 

LAPSED  DEVISES  AND  LEGACIES, 

lapse  in  case  legatee  dies  before  testator,  293. 
application  to  residuary  legatees,  293,  299. 
use  of  words  "heirs,  executors,  assigns,"  etc.,  293,  294. 
gift  to  corporation  lapsing  by  dissolution,  294. 
rule  as  to  advancement  on  account  of  a  legacy,  294. 


INDEX  653 

LAPSED   DEVISES   AND   LEGACIES  (Continued) 
no  lapse  in  case  of  joint  tenants,  295. 
lapse  in  case  of  tenants  in  common,  295. 
but  not  when  class  is  fluctuating,  295. 
devise  to  individuals  by  name  lapses,  296. 
statutory  provisions  substituting  one  legatee  for  another,  296. 
no  lapse  when  legacy  is  given  over,  297. 

LARCENY, 

of  wills,  480. 

LAST  SICKNESS.     (See  FUNERAL  EXPENSES.) 

LEASE, 

by  life  tenant,  159. 
executors  authorized  to,  343. 

LEASEHOLD  ESTATE, 

as  wasting  investment,  415. 

LEGACY.     (See  DEVISE  AND  LEGACY.) 
LEGACY  TAXES.     (See  TAXATION.) 

LEGAL  REPRESENTATIVES, 
meaning  of,  227. 

LEGATEE.     (See  DEVISE  AND  LEGACY.) 

LETTERS, 

provisions  as  to,  115. 

LIABILITY, 

of  executor,  323  et  seq. 
trustee,  370. 
guardian,  323  et  seq. 

LIENS.     (See  INCUMBRANCES.) 

LIFE  ESTATE.     (See  DESCRIPTION  OF  REAL  ESTATE.) 

LIFE  ESTATE   IN  PERSONALTY, 

cannot  be  given  in  tail  with  remainder  over,  160. 

when  a  bequest  of  money  is  a  gift  of  the  interest,  160. 

gift  of  use  of  things  consumed  by  use  is  absolute,  160. 

words  which  give  fee  in  real,  give  absolute  property  in  personal, 

160,  161. 

provisions  qualifying  absolute  gift  must  be  clear,  161. 
when  trustee  necessary  in  case  of  general  gift  with  limitation 

over,  161. 
life  estate  in  residue  not  advisable,  162. 

LIFE  INSURANCE.     (See  INSURANCE.) 


654  TESTAMENTARY  FORMS 

LIMITATIONS,   STATUTE  OF, 

when  debt  barred  by,  cannot  be  deducted  from  legacy,  257. 
in  regard  to  payment  of  debts,  269  et  seq. 

legacies,  273. 
trusts,  364. 

LIQUOR,   INTOXICATING, 

not  to  be  used  on  devised  premises,  188. 

LITERARY  EXECUTOR, 
provision  as  to,  116. 

LORD'S  DAY, 

execution  of  will  on,  468. 

LOST  WILL, 

provisions  as  to,  480. 

M 

MAINTENANCE  AND  SUPPORT, 
devises  charged  with  expenses  of,  171. 
income  for,  406. 
of  ward,  449. 

MANUSCRIPTS, 

provisions  as  to,  115. 

MARRIAGE, 

agreements  before,  121. 
restraint  of,  174. 
when  it  revokes  will,  306. 
portions,  256  et  seq. 

MARRIED      MAN.     (See   CURTESY;     DOWER;    HUSBAND    AND 

WIFE.) 
may  make  a  will,  51. 

MARRIED    WOMAN.     (See  CURTESY;   DOWER;   HUSBAND  AND 

WIFE;  WIDOW.) 
may  be  devisee  or  legatee,  125. 
gift  for  sole  and  separate  use  of,  125,  431. 
may  make  a  will,  58. 

execution  of  power  of  appointment  by,  69. 
may  be  executrix,  310. 
trustee,  367. 
guardian,  446. 

MARSHALLING  OF  ASSETS, 
reason  for  making  a  will,  6. 
directions  as  to,  330. 


INDEX  655 

MASSES, 

bequest  of  money  for,  455. 

MECKLENBURG-SCHWERIN, 

treaty  with,  as  to  disposing  of  property,  36. 

MEMENTOS, 

selection  of,  232. 

MINING  SHARES, 

as  wasting  investment,  415. 

MINORS.     (See  INFANTS.) 

MISTAKE, 

in  executing  will,  48. 

MONEY, 

devised  land  charged  with  payment  of,  152. 
meaning  of,  160,  234. 

MONTHLY, 
use  of,  395. 

MOROCCO, 

treaty  with,  as  to  disposing  of  property,  37. 

MONUMENT, 

provision  as  to,  11,  81. 
forms  as  to,  84-88. 

MORTGAGE.     (See  EXONERATION;   INCUMB RANGES.) 
when  power  to,  should  be  given,  159,  338. 

MUNICIPAL  CORPORATIONS, 
bequests  and  devises  to,  127. 

MUTUAL  WILLS, 
definition  of,  139. 

N 

NEPHEWS  AND  NIECES, 
meaning  of,  211,  212. 

NET   INCOME, 
meaning  of,  393. 

NEXT  OF  KIN, 

when  devise  to,  creates  remainder,  190. 
meaning  of,  222-224,  445. 

NON-RESIDENT, 
as  executor,  310. 
trustee,  367. 


656  TESTAMENTARY   FORMS 

NUNCUPATIVE  WILL, 
provisions  as  to,  13. 
definition  of,  139. 

O 

OBLITERATIONS  AND  INTERLINEATIONS, 
law  as  to,  300,  467. 

OPERA  BOX, 

provisions  as  to,  114. 

"OR," 

may  be  construed  "and,"  493. 

ORIGINAL  WILL, 

when  court  will  look  at,  128. 

"OTHER," 

whether  "survivor"  is  to  be  changed  into,  436. 


P 

PAPERS, 

disposition  of,  115. 

how  incorporated  in  will,  129,  472. 

PARAGRAPHS, 

in  case  of  wills,  128. 

PARAGUAY, 

treaty  with,  as  to  disposing  of  property,  38. 

PARTITION, 

provisions  as  to,  100. 
power  to  sell  not  authorizing,  336. 
powers  to  trustees  to,  382. 
among  remainder-men,  440. 

PARTNER.     (See  BUSINESS  OP  TESTATOR.) 
of  testator  may  be  executor,  312. 
interest  of,  whether  capital  or  income,  414. 

PATENTS, 

as  wasting  investments,  415. 

PATRON, 

bequest  of  rights  of,  76. 

PAYMENT  OF  DEBTS, 

provisions  as  to,  269  et  seq.,  329  et  seq. 

PAYMENT  OF  INCOME.     (See  INCOME.) 


INDEX  657 

PAYMENT    OF    LEGACIES.     (See  DEVISE  AND  LEGACY;   EX- 
ECUTOR.) 

when  upon  condition,  166. 
devises  charged  with,  171. 

PECUNIARY   LEGACY, 
regarded  as  general,  236. 
interest  on,  289. 

PER  CAPITA, 

provisions  as  to,  218  et  seq. 

PERPETUITY, 

limitation  must  take  effect  within  required  period,  193  et  seq. 

rule  in  New  York,  198. 

will  speaks  from  death  of  testator,  199. 

sufficient  if  title  vests  within  prescribed  period,  200. 

alternative  contingencies,  201. 

devise  to  a  class  of  persons,  202. 

directions  to  accumulate  the  income,  202. 

accumulation  for  charitable  purposes,  204. 

devise  not  to  vest  for  twenty-one  years  or  less,  204. 

application  of  rule  to  public  charities,  204-206. 

conditions  subsequent,  206. 
powers  of  appointment,  207. 
disposition  of  property  when  limitation  void,  208. 
avoidance  of,  in  termination  of  trust,  432. 

PERSONAL  EFFECTS, 
bequest  of,  229. 

PERSONAL  PROPERTY.    (See  LIFE  ESTATE  IN  PERSONALTY.) 
pews  as,  113. 
pledge  of,  96. 

PER  STIRPES, 

provisions  as  to,  218  et  seq. 

PEWS, 

provisions  as  to,  113. 

PLEDGE, 

rights  of  legatee  in  case  of,  96. 

PLURALITY, 
of  donees,  213. 
of  persons  preventing  lapse,  295. 

PORTIONS, 

deductions  from,  given  in  trust,  258. 


658  TESTAMENTARY   FORMS 

POSTHUMOUS  CHILDREN, 

provisions  as  to,  211.  , 

POWER  OF  APPOINTMENT, 
conferred  by  foreign  will,  18. 

limitation  to  particular  class  or  certain  persons,  68. 
execution  when  domicile  not  that  of  testator,  68. 
statutory  provisions  as  to,  68. 
execution  by  residuary  clause,  68. 
reference  to,  advisable,  69. 
use  of  "heirs"  in  execution  of,  69. 
conferred  upon  married  women,  69. 
requirement  as  to  execution  by  will,  69. 
execution  of,  making  property  part  of  testator's  assets,  69. 
sale  of  estate  subject  to,  192. 
application  of  rule  against  perpetuities  to,  207. 
termination  of  trust  by,  433. 

POWER  OF  ATTORNEY, 

by  executors  and  trustees,  355. 

POWER  TO  SELL.     (See  EXECUTOR;  TRUST  AND  TRUSTEE.) 
giving,  a  reason  for  making  a  will,  10. 

PRECATORY  WORDS, 

avoidance  of,  130,  360,  361. 

PREMIUMS.    (See  BONDS.) 

PRESUMPTION, 

of  destruction  of  will,  304. 

PRINCIPAL.    (See  INCOME;  REMAINDER;  TRUST  AND  TRUSTEE.) 
various  questions  as  to,  410  et  seq. 

PROBATE  OF  WILL.     (See  WILL.) 

PROFITS, 

meaning  of,  393. 

PROMISSORY  NOTES.    (See  ADVANCES;  APPORTIONMENT.) 
signing  of  etc.,  by  executor,  112. 

PUBLICATION, 
of  will,  473. 

PUBLIC   CHARITY, 

in  case  of  unincorporated  societies,  455. 

bequest  for,  in  foreign  jurisdiction,  17. 

application  of  rule  against  perpetuities  to,  204  et  seq. 

statutes  in  different  jurisdictions,  451. 

objects  in  statute  of  Elizabeth  enumerated,  451. 

charity  defined,  452. 


INDEX  659 

PUBLIC   CHARITY  (Continued) 

rules  and  principles  relative  to,  453. 

indefiniteness  of,  452. 

the  doctrine  of  cy-pres,  when  resorted  to,  454. 

when  estate  descends  to  heirs  of  testator  subject  to  trust,  454. 

when  estate  should  be  given  to  trustees  and  their  successors,  454. 

trustees  not  required  to  give  bonds,  454. 

appointment  of  new  trustees,  455. 

who  may  take  a  charity,  455. 

masses  for  the  dead,  455. 

general  objects  enumerated,  456. 

invalid  charities  enumerated,  456. 

gifts  to  maintain  or  endow  existing  institutions,  456,  463. 

bequests  to  be  expended  according  to  wishes  of  testator,  460. 

bequests  to  executors  with  limitation  over  to  corporation  when 

organized,  463. 

provisions  for  expenses  incident  to  the  care  of  buildings,  464. 
adjudications  containing  forms,  465. 
incorporation  of  trustees,  465. 

PUNCTUATION, 
of  wills,  128,  129. 

PURCHASE  MONEY,   APPLICATION  OF, 

when  purchaser  must  see  to,  153. 
in  case  of  powers  of  sale  to  executors,  338. 
trustees,  381. 


Q 

QUARTERLY, 
use  of,  395. 

R 

RATIFICATION.     (See  CODICIL.) 
of  conveyance  by  devise,  118. 

REAL  ESTATE   BROKERS, 

provisions  as  to  employment  of,  350  et  seq. 

REASONS, 

for  making  a  will,  1  et  seq. 
for  creating  trust,  360,  489. 

RECEIPTS.     (See  SOLE  AND  SEPARATE  USE.) 
of  executors  and  trustees,  338,  381. 

RECOMMENDATIONS, 

provisions  as  to,  reason  for  making  a  will,  11. 


660  TESTAMENTARY   FORMS 

RECOMMENDATIONS  (Continued) 

expressed  in  instrument  distinct  from  will,  78,  130  et  seq.,  361, 
460. 

RECORD, 

will  as  matter  of,  4. 

incorporated  by  reference,  129,  472. 

suggestion  to  executors  and  trustees  as  to  keeping,  353. 

RE-EXECUTION, 

of  will  in  case  of  change  of  domicile,  13. 
law,  476. 

RE-INVESTMENTS.     (See  INVESTMENTS.) 

RELATIONS  OR  RELATIVES, 
meaning  of,  227. 
when  devise  to,  creates  vested  remainder,  190. 

legacy  to,  does  not  lapse,  296. 
of  cestui  que  trust,  should  not  be  trustees,  366. 

REMAINDER, 

may  be  devised,  60. 
no  dower  or  curtesy  in,  60,  61. 

may  be  defeasible  upon  the  happening  of  a  condition  subse- 
quent, 189. 

may  be  limited  to  take  effect  after  an  estate  tail,  189. 
preferred  to  executory  devise,  189. 
vested,  preferred  to  contingent,  189. 
acceleration  of,  189. 
vested,  how  created,  190,  191. 
contingent,  how  created,  191,  192. 
sale  of  estate  subject  to,  192. 
when  specific,  236. 
preservation  of  trust  necessary  in  case  of  contingent,  439. 

REMAINDER-MAN, 

power  as  to  distribution  among  remainder-men,  337. 
should  not  be  trustee,  365. 
questions  between,  and  life  tenant,  410  et  seq. 
partition  in  case  of,  440. 

RENTS, 

charges  upon,  159. 

of  real  estate  until  sold  for  debts,  334. 

meaning  of,  393. 

REPAIRS, 

when  charged  upon  principal  or  income,  411. 

REPRESENTATION.     (See  PEE  STIRPES.) 


INDEX  661 


REPUBLICATION, 
of  will,  476. 


REPUGNANT  PROVISIONS, 

rule  as  to,  494. 

REQUEST.     (See  RECOMMENDATIONS.) 

RESIDENCE, 

as  a  home  for  the  family,  88,  89. 
conditions  as  to,  184. 

of  trustee  and  cestui  que  trust  outside  the  jurisdiction  of  the 
court,  370. 

RESIDUARY  LEGACY, 
not  specific,  236. 

RESIDUARY  LEGATEE.     (See  RESIDUE.) 

entitled  to  distribution  when  gift  too  remote,  208. 

rights  of  relative  to  payment  of  legacies,  291. 

what  the  term  passes,  299  et  seq. 

rights  as  to  increase  or  decrease,  300,  301. 

lapse  when  more  than  one,  301. 

revocation  by  codicil  of  gift  to  one  of  several  residuary  legatees, 

in  will,  301. 

allotment  of  real  estate  to  one  of  several  residuary  legatees,  302. 
application  of  lapse  to,  293. 
as  executor,  322. 

RESIDUE.     (See  RESIDUARY  LEGATEE.) 
including  after-acquired  property,  60. 

gift  of,  when  it  operates  as  an  execution  of  a  power  of  appoint- 
ment, 68. 

life  interest  in,  without  creating  trust,  162. 
liable  to  pay  debts  and  legacies,  300. 
what  sinks  into,  399  et  seq. 
rights  as  to  increase  or  decrease  of,  300,  301. 
in  trust,  364. 

RESTRAINT.    (See  ALIENATION.) 

RESULTING  TRUST, 

in  case  of  failure  of  charitable  object,  206. 

where  testator  has  not  disposed  of  all  his  property,  444. 

REVERSION, 

when  passes  under  residue,  300. 

REVIVAL, 

of  wUl,  304. 


662  TESTAMENTARY   FORMS 

REVOCATION, 
of  trust  deed,  2. 

trust,  442. 

legacy  by  codicil,  143-146. 
By  Burning,  Tearing,  etc., 

of  will  executed  in  duplicate,  303. 

will  not  revoked  by  destruction  of  codicil,  303. 

statutory  provisions,  303,  304. 

when  witnesses  required,  304. 

presumption  of  revocation,  304. 

when  former  will  not  revived,  304. 

what  power  to  revoke  includes,  304. 

"dependent  relative  revocation,"  305. 
By  Changes  in  Testator's  Condition, 

marriage  and  birth  of  child,  306,  307. 

effect  of  power  of  appointment,  306,  307. 
By  Some  Other  Writing, 

how  it  is  to  be  executed,  307. 
By  Change  of  Domicile  or  Divorce  and  Adoption  of  Child, 

provisions  as  to,  307. 

RIGHT  OF  REPRESENTATION.     (See  PER  STIKPES.) 

RIGHT  OF  REVERTER, 

when  passes  under  residue,  300. 

RUSSIA, 

treaty  with,  as  to  disposing  of  property,  39. 


S 
SAFE  KEEPING  OF  WILLS.    (See  CUSTODY.) 

SATISFACTION, 

of  legacy  by  gift,  263-267. 

SAVINGS  BANK, 

deposits  in,  in  trust,  63. 
as  trustee,  367. 

SAXONY, 

treaty  with,  as  to  disposing  of  property,  41. 

SEAL, 

should  be  affixed  to  will,  466. 

SECURITIES, 

directions  as  to  examination  of,  359,  389. 

SEMI-ANNUALLY, 
use  of,  395. 


INDEX  663 

SEPARATE  TRUST  ESTATES, 
provisions  as  to,  436. 

SERVANTS, 
gifts  to,  185. 

SERVIA, 

treaty  with,  as  to  disposing  of  property,  42. 

SHARES, 

giving  property  in,  250. 

SHELLEY'S  CASE,   RULE   IN, 
abolished  by  statute,  155,  159. 

SHIPS  AT  SEA, 

as  wasting  investments,  415. 

SIGNATURE.     (See  EXECUTION  OF  WILL.) 

SIMULTANEOUS   DEATHS, 

possibility  of,  a  reason  for  making  a  will,  7. 

SINGLE  MAN, 

may  make  a  will,  51. 

SINGLE  WOMAN, 

may  be  executor  and  trustee,  310,  365. 

guardian,  446. 
may  make  a  will,  51. 

SISTERS.     (See  BROTHERS  AND  SISTERS.) 

SOLE  AND  SEPARATE   USE, 
of  married  woman,  125,  431. 

SON,  ELDEST  OR  YOUNGEST, 
what  period  referred  to,  214. 

SOUND  AND  DISPOSING  MIND, 
when  person  of,  may  make  will,  48. 
questions  raised  as  to,  50. 

SPAIN, 

treaty  with,  as  to  disposing  of  property,  43. 

SPECIFIC  DEVISES  AND  LEGACIES, 

rights  of  devisees  and  legatees  in  case  of  mortgage  of,  91,  96. 

not  favored,  235. 

intention  must  be  clear,  235. 

bequest  of  stock,  235. 

"my"  in  reference  to  stock,  235. 

sum  due  upon  mortgage  or  note,  236. 


664  TESTAMENTARY  FORMS 

SPECIFIC   DEVISES  AND  LEGACIES  (Continued) 
proceeds  of  mortgage,  236. 

money  due  on  a  certain  bond  or  in  a  particular  bank,  236. 
a  particular  security,  236. 
mortgage  deed,  note,  and  debt,  236. 
bequest  of  all  of  certain  articles,  236. 
pecuniary  legacy  regarded  as  general,  236. 
devise  of  farm,  etc.,  specific,  236. 
use  of  a  certain  lot  for  life  and  remainder  specific,  236. 
residuary  legacy  not  specific,  236. 
ademption,  238. 

rule  as  to  demonstrative  legacy,  238,  239. 
when  interest  upon,  belongs  to  legatee,  241. 
abatement,  242  et  seq. 
contribution,  250. 

STOCK, 

bequest  of,  97,  235. 

SUBSCRIPTIONS, 

to  stock  bequeathed,  97. 
charitable  objects,  98. 

SUBSTITUTIONAL  LEGACIES, 
provisions  as  to,  144. 

SUCCESSION, 
rights  of,  56. 

SUGGESTIONS  FOR  WILLS, 

duties  of  attorney  as  to,  482. 

personal  instructions,  482,  483. 

nature  and  extent  of  testator's  property,  483-488. 

testator's  personal  position  and  relations  to  his  family,  488. 

public  charities  and  trust  estates,  489  et  seq. 

SUNDAY.     (See  LORD'S  DAT.) 

SUPPORT.    (See  MAINTENANCE  AND  SUPPORT.) 

SURVIVAL  OF  ACTIONS, 
provisions  as  to,  80. 

SURVIVORSHIP, 

in  case  of  joint  tenants  and  tenants  in  common,  99,  295,  301. 

as  determining  contingent  remainder,  191. 

refers  to  what  period  of  distribution,  227. 

in  case  of  powers  of  sale,  336. 

power  of  survivor  to  consent  to  sale,  338. 

privilege  of  surviving  partner  to  take  business,  104. 


INDEX  665 

SURVIVORSHIP  (Continued) 

when  court  should  appoint  a  new  trustee  to  act  with  survivors, 

373. 

survivor  of  trustees,  estate  vesting  in,  373. 
income  for  joint  lives  and  life  of  survivor,  436. 
when  survivor  means  other,  436. 

when  clause  of  survivorship  does  not  apply  to  accruing  shares, 
438. 

SWEDEN  AND  NORWAY, 

treaty  with,  as  to  disposing  of  property,  44. 

SWITZERLAND, 

treaty  with,  as  to  disposing  of  property,  45. 


T 
TAXATION, 

of  life  tenant,  159. 
legacies,  287. 

property  of  deceased  persons,  347. 
trust  property,  411. 

TENANTS  BY  ENTIRETY, 

in  case  of  husband  and  wife,  101. 

TENANT  FOR  LIFE.    (-See  ANNUITY;  APPORTIONMENT;   TRUST 

AND  TRUSTEE.) 
questions  between,  and  remainder-men,  410  el  seq. 

TENANTS   IN   COMMON.    (See  JOINT  TENANCY  AND  TENANCY 
IN  COMMON.) 

TERMINATION  OF  TRUST.     (See  TRUST  AND  TRUSTEE.) 
TESTATOR.     (See  WILL.) 

THIRDS, 

of  widow,  56. 

TOMB.     (See  CEMETERY  Lor.) 

when  bequest  for  permanent  care  of,  creates  a  perpetuity,  82. 

TORT, 

committed  by  executor,  102. 

TOWN.     (See  CITY.) 

TRADE  SECRET, 
bequest  of,  67. 

TREATIES, 

provisions  of,  as  to  disposition  of  property,  18-47. 


666  TESTAMENTARY   FORMS 

TRUST    AND    TRUSTEE.    (See  GUARDIAN;   PUBLIC  CHABITY.) 
creation  of  trust,  a  reason  for  making  a  will,  6. 
devise  of  property  the  subject  of  trust,  62. 
legacy  to  trustee,  172. 
trust  in  case  of  savings  bank  book,  63. 
Language  and  Subject-matter  of  Trust, 

reasons  for  creating  a  trust,  360,  489. 

words  necessary  to  create,  360  et  seq. 

caution  as  to  the  word  "use,"  361. 

what  may  be  subject  of  trust,  361  et  seq. 

household  furniture  should  be  given  outright,  362. 

when  real  estate  is  included,  362  et  seq. 

trust  property  and  trustee  outside  testator's  domicile,  364. 

trust  of  all  over  a  certain  amount,  364. 

residue  in  trust,  364. 

application  of  statute^of  limitations,  364. 
The  Trustee, 

directions  that  a  majority  may  act,  328  et  seq. 

discretionary  powers,  343. 

purchasing  trust  property,  344. 

directions  to  insure,  345. 

employment  of  attorneys,  etc.,  and  consultations  with  others, 
350. 

keeping  records,  353. 

powers  of  attorney,  355. 

voting  shares,  356. 

compromise  and  arbitration,  348. 

nearly  any  one  may  be,  365. 

remainder-man  as,  365. 

relation  should  not  be,  366,  492. 

married  woman  may  be,  367. 

when  infants  may  be,  367. 
alien  may  be,  367 
non-resident  may  be,  367. 

city  may  be,  367. 

trust  company  may  be,  367. 

savings  bank  as,  367. 

cemetery  corporation  as,  367. 

one  in  his  official  capacity  as,  367,  368. 

annuities,  368. 

executor  as,  369  et  seq. 

may  reside  outside  jurisdiction,  370. 

how  domicile  determines  taxation,  370. 

bond  and  liability  thereon,  370. 

compensation  of,  371. 
Number  and  Appointment  of  New  Trustees, 

number  of,  491. 

until  appointment  property  vests  in  survivor,  373. 


INDEX  667 

TRUST   AND   TRUSTEE  (Continued) 

provisions  for  appointment  of,  373,  455. 

when  judge  of  probate  in  appointment  of,  acts  under  will, 
373. 

provisions  in  will  for  filling  vacancies,  374,  455. 
Power  to  Sell,  Mortgage,  Invest,  etc., 

directions  as  to,  381-389. 
Auditing  Accounts  and  Examining  Securities, 

provisions  as  to,  389. 
The  Cestui  Que  Trust. 

nearly  anyone  may  be,  393. 

meaning  of  "rents,"  "profits,"  "income,"  etc.,  393. 

when  entitled  to  income,  393. 

how  regulated,  393. 

special  provisions,  394. 

meaning  of  "monthly,"  "quarterly,"  "semi-annually,"  "an- 
nually," 395. 

proportions  should  be  clearly  stated,  395. 

alienation  and  anticipation,  395  et  seq. 

adding  income  to  principal,  400,  401. 
Annuites, 

provisions  as  to,  401  et  seq. 
Income  for  Education  and  Support, 

party  entitled  to  income  so  long  as  he  educates  and  main- 
tains, 406. 

whether  income  to  be  paid  over  or  expended,  406. 
to  be  paid  to  guardian,  406. 

discretionary  powers  should  pass  to  successors,  406. 

alienation  or  attachment  of  income,  406. 

accumulation  of  unused  income,  406. 

directions  as  to  use  of  principal  when  income  insufficient, 
406,  407. 

when  advisable  to  pay  funeral  expenses,  407. 
Questions  between  Tenant  for  Dife  and  Remainder-man, 

insurance,  depreciation,  repairs,  taxes,  etc.,  410-412. 

dividends,  whether  income  or  principal,  412  et  seq. 

capital  and  income  in  the  case  of  partnerships,  414. 

wasting  investments,  415—125. 

commissions  or  brokerage,  425. 

interest  on  bonds,  426-429. 

apportionment  of  dividends,  coupons,  interest,  etc.,  429. 

disposition  of  fund  when  cestui  que  trust  lives  in  another 
jurisdiction,  431,  432. 

sole  and  separate  use,  431. 
Termination  of  the  Trust, 

avoidance  of  creation  of  perpetuity,  432. 

by  power  of  appointment,  433. 

by  instalments,  435. 


668  TESTAMENTARY   FORMS 

TRUST  AND   TRUSTEE  (Continued) 

one  fund,  or  as  many  as  there  are  cestuis  que  trust,  435. 
separate  trust  estates  and  separate  accounts,  436. 
whether  "survivor"  is  to  be  read  "other,"  436-439. 
termination  before  purposes  are  accomplished,  439. 
preservation  of  trust  in  case  of  contingent  remainder,  439. 
when  trustees  required  to  make  partition  among  remainder- 
men, 440. 

distribution  by  conversion  into  cash,  440. 
termination  in  discretion  of  trustee,  441. 

the  alternative,  442. 
delegation  and  revocation,  442. 
purchase  of  an  annuity,  443. 
termination  on  death  of  trustee,  443. 
resulting  trusts,  444. 
use  of  "heirs-at-law"  and  "next  of  kin,"  445. 

TRUST  COMPANY, 
as  executor,  313. 

trustee,  367. 

guardian,  446. 
may  grant  annuities,  368. 

TRUST  DEEDS, 

when  not  advisable,  1,  3. 
provisions  as  to,  63. 

TRUST  PROPERTY, 

purchase  of,  by  executors  and  trustees,  344. 

TYPEWRITTEN  WILLS, 
deception  in  case  of,  471. 


UNDUE  INFLUENCE, 

in  case  of  will,  48. 

UNINCORPORATED  SOCIETY, 
devise  or  legacy  to,  126. 
taking  bequest  for  charitable  use,  455. 

UNITED  STATES, 

may  be  devise  or  legatee,  127. 

UNNAMED  PERSON, 
as  executor,  311. 

UNSOUNDNESS  OF  MIND, 
in  case  of  will,  48. 


INDEX  669 


USES,   STATUTE  OF, 
still  in  force,  361. 


V 

VACANCIES, 

in  number  of  executors  and  trustees,  318  et  seq.,  373. 
in  case  of  public  charities,  455. 

VESTED  REMAINDER.     (See  REMAINDER.) 

VOID   DEVISES   AND   LEGACIES.     (See  CONDITION;  DEVISE 

AND  LEGACY;  PERPETUITY.) 
pass  by  residuary  devise,  299. 

VOTING  SHARES, 

instructions  as  to,  356. 

W 
WAIVER, 

of  will  by  husband  or  wife,  55. 

WARD.     (See  GUARDIAN.) 

WASTING  INVESTMENTS, 
law  of,  415-425. 

WATCHES, 

bequest  of,  229. 

WEARING  APPAREL, 
bequest  of,  229. 

WIDOW, 

rights  of,  a  reason  for  making  a  will,  7-9. 

waiver  of  husband's  will  by,  55,  56. 

rights  of,  in  husband's  estate,  56. 

ante-nuptial  contract  of,  54. 

allowances  to,  rights  of,  etc.,  54  et  seq. 

interest  upon  legacy  to,  289,  290. 

duties  of,  before  administration  on  husband's  estate,  309. 

WIFE.     (See  HUSBAND  AND  WIFE;   MARRIED  WOMAN;   WIDOW; 

WILL.) 
will  of  husband  relative  to,  54. 

WILL.     (See  CODICIL;  DEVISE  AND  LEGACY.) 
reasons  for  making,  1  et  seq. 

validity  of,  which  merely  appoints  executor,  3,  309. 
where  it  may  be  made,  12. 
change  of  domicile  as  affecting,  13. 


670  TESTAMENTABY   FORMS 

WILL  (Continued) 

declaration  of  domicile  in,  14. 

effect  of,  in  foreign  jurisdictions,  14  et  seq. 

limiting  application  of,  16. 

treaties  providing  for,  18-^7. 

questions  which  arise  in  probate  of,  48  et  seq. 

must  be  in  writing,  128. 

what  probate  establishes,  128. 

custody  of,  479. 

lost  or  destroyed,  480. 

obligation  to  probate,  480. 

larceny  or  destruction  of,  480. 

Who  May  Make, 

any  person  of  full  age  and  sound  mind,  48. 

but  not  when  influenced  by  fraud,  48. 

old  age  is  no  disqualification,  49. 

alien,  50. 

single  man,  51. 

married  man,  51. 

single  woman,  51. 

married  woman,  58. 
Form  of, 

in  general,  128. 

chirography,  128. 

punctuation,  128,  129. 

paragraphs,  128. 

uniformity,  128. 

when  court  will  look  at  original  will,  129. 

paper  referred  to,  when  incorporated,  129. 

instructions  distinct  from  will,  130. 

commencement,  137. 
Different  Kinds  of  Witts, 

holographic,  139. 

nuncupative,  139. 

mutual  and  joint,  139. 

conditional,  140. 

concurrent,  142. 

agreement  to  make,  143. 

codicil,  143-146. 

WISHES.     (See  RECOMMENDATIONS.) 

WITNESS.     (See  EXECUTION  OP  WILL.) 

devise  or  legacy  to,  or  to  husband  or  wife  of,  void,  116,  126. 
to  revocation  of  will,  304. 
number  of,  required,  471. 
who  must  be,  471. 
selection  of,  471. 


INDEX  671 

WITNESS  (Continued) 

who  should  not  be,  471,  472. 

opinions  by,  as  to  testator's  mental  condition,  472. 

when  document  not  incorporated  in  will  invalid  without,  129, 

472. 

publication  to,  473. 
should  see  the  testator  sign,  473. 
should  sign  in  presence  of  testator  and  after  he  has  signed,  473, 

474. 

witnesses  should  sign  in  the  presence  of  one  another,  474. 
writing  place  of  residence  opposite  name,  474. 
in  case  of  blind  or  illiterate  testator,  475. 
aged  or  feeble  one,  475. 
deaf  or  dumb  one,  475. 

WORDS, 

taken  in  their  ordinary  and  grammatical  sense,  493. 
supplying  and  transposing  of,  etc.,  493. 
use  of  technical,  494. 
repetition  of,  494. 

WRITING, 

will  must  be  in,  128. 

what  it  includes,  128. 

consent  to  sale  should  be  in,  338. 

WURTTEMBERG, 

treaty  with,  as  to  disposing  of  property,  47. 


A     000  696  515     6 


